Andreski v. United States Marshals Service (agency decision, April 22, 2024)

Plain-English summary

Christopher Andreski filed a retaliation complaint against the United States Marshals Service under the Criminal Antitrust Anti-Retaliation Act. An administrative judge dismissed the OSHA complaint as outside the 180-day filing period. Andreski petitioned the Board for review, but he did not file an opening brief even after the Board reissued the schedule by mail and email. He also did not answer a show-cause order warning that the appeal could be dismissed. The Board dismissed the appeal for failure to comply with its orders, without reviewing the retaliation merits.

Decision snapshot

• Cited authorities: 15 U.S.C. § 7a-3; 29 C.F.R. § 1991.103
• Outcome: Petition for review dismissed for failure to prosecute.
• Key point: The Board may dismiss an appeal when the petitioner misses a reissued briefing deadline and then ignores a show-cause order.

Full text (DOL official public release)

U.S. Department of Labor      Administrative Review Board
                              200 Constitution Ave. NW
                              Washington, DC 20210-0001




IN THE MATTER OF:


CHRISTOPHER ANDRESKI,                    ARB CASE NO. 2024-0015

          COMPLAINANT,                   ALJ CASE NO. 2023-CAR-00002
                                         ALJ PAUL C. JOHNSON, JR.
     v.
                                         DATE: April 22, 2024
UNITED STATES MARSHALS
SERVICE,

          RESPONDENT.

Appearances:

For the Complainant:
Christopher Andreski; Pro Se; Belmont, Michigan

For the Respondent:
Cedric D. Bullock, Esq., and Lisa M. Dickinson, Esq.; United States
Marshals Service; Arlington, Virginia

Before HARTHILL, Chief Administrative Appeals Judge, and ROLFE, Administrative Appeals Judge

    DECISION AND ORDER DISMISSING PETITION FOR REVIEW

PER CURIAM:

  This matter arises under the employee-protection provisions of the Criminal

Antitrust Anti-Retaliation Act (CAARA).1 On December 15, 2023, an Administrative

1 15 U.S.C. § 7a-3, as implemented by the regulations at 29 C.F.R. Part 1991 (2023). 2

Law Judge (ALJ) issued an Order Dismissing Complaint (D. & O.), finding Complainant Christopher Andreski’s (Complainant) OSHA complaint untimely under the 180-day time limit codified at 29 C.F.R. § 1991.103.2

   On January 16, 2024, Complainant filed a Petition for Review with the

Administrative Review Board (ARB or the Board).3 On February 1, 2024, the Board issued a Notice of Appeal Acceptance, Expedited Briefing Order, and Electronic Filing Requirements (Briefing Order) which, among other things, set forth an expedited briefing schedule in this case. Pursuant to the expedited briefing schedule, Opening Briefs in the case were due within 14 days. On March 6, 2024, the Board issued an Order Re-establishing Briefing Schedule (Second Briefing Order) because it had learned that the Briefing Order (sent to Complainant via United States Postal Service Certified Mail) was being returned to the Board as unclaimed. The Board mailed the Second Briefing Order to Complainant’s address of record, and also emailed the Second Briefing Order to the email address Complainant used to file his Petition for Review. Pursuant to the Second Briefing Order, Opening Briefs were due on or before March 20, 2024. Complainant did not file an Opening Brief.4

   Consequently, on March 25, 2024, the Board issued an Order to Show Cause

ordering Complainant to explain why the Board should not dismiss the appeal for failure to comply with the Board’s orders and briefing requirements.5 The Board cautioned Complainant that if the Board did not receive a response and opening brief within ten calendar days of the Board’s Order to Show Cause, the Board may dismiss the appeal without further notice.6 Nevertheless, Complainant did not file a response or an opening brief as ordered.

2 D. & O. at 3.
3 Complainant’s Petition for Review.
4 The Respondent, United Marshal Service, filed an Opening Brief with the ARB on March 20, 2024. 5 ARB Order to Show Cause. 6 Id. 3

   The Board has the inherent power to dismiss a case for failure to prosecute in

an effort to control its docket and to promote the efficient disposition of its cases.7 Pursuant to this authority, the Board may dismiss an appeal in a case in which the petitioner fails to adequately explain their failure to comply with the Board’s orders, including the briefing schedule.8

   Complainant failed to file an opening brief as ordered by the Board. The

Board then gave Complainant the opportunity to explain why Complainant failed to file an opening brief, and explicitly warned that failure to do so could result in dismissal of this appeal. Again, Complainant did not file a response. Given Complainant’s failure to respond to, and comply with, the Board’s orders, we DISMISS the appeal.9

  SO ORDERED.



                                    ____________________________________
                                    SUSAN HARTHILL
                                    Chief Administrative Appeals Judge




                                    ____________________________________
                                    JONATHAN ROLFE
                                    Administrative Appeals Judge

7 Lewman v. Ken Brick Masonry Supply, ARB No. 2007-0015, ALJ No. 2006- STA-00018, slip op. at 3 (ARB Oct. 31, 2007) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). 8 Boch v. J.P. Morgan Secs., ARB No. 2022-0029, ALJ Nos. 2020-CFP-00002, 2020-SOX-00004, slip op. at 2 (ARB June 15, 2022) (citation omitted) (dismissing the appeal where the appealing party failed to respond to, and comply with, the Board’s orders). 9 In any appeal of this Decision and Order that may be filed, we note that the appropriately named party is the Secretary, Department of Labor, not the Administrative Review Board.