Simmons v. Fourteenth Avenue Cartage Co., Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
RAYMOND SIMMONS,
COMPLAINANT,
v.
FOURTEENTH AVENUE
CARTAGE CO., INC.,
RESPONDENT.
ARB CASE NO. 2025-0057
ALJ CASE NO. 2020-STA-00092
ALJ JASON A. GOLDEN
DATE: July 13, 2026
Appearances:
For the Complainant:
Raymond Simmons; Pro Se; Detroit, Michigan
For the Respondent:
Michael Wernette, Esq.; Wernette Heilman; Clarkston, Michigan
Before KAPLAN and BURRELL, Administrative Appeals Judges
ORDER OF DISMISSAL
This case arises under the employee protection provisions of the Surface
Transportation Assistance Act of 1982 (STAA), and its implementing regulations.1
On May 7, 2025, Complainant Raymond Simmons filed a Petition for Review with
the Administrative Review Board (Board) of an Administrative Law Judge’s
Decision and Order Denying Claim, issued on April 23, 2025. Complainant filed his
Petition for Review with the Board electronically using the Board’s electronic filing
and service (EFS) system. In doing so, he registered with the Board using his
personal email address and agreed to accept service of Board issuances via email
through the EFS system.
1 49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2026).

2
On May 12, 2025, the Board issued a Notice of Appeal Acceptance, Electronic
Filing Requirements, and Briefing Order (Briefing Order). The Briefing Order
ordered Complainant to file an Opening Brief on or before June 9, 2025 (28 days
from the Briefing Order). The Board issued the Briefing Order through the EFS
system, which should have automatically sent a copy of the Briefing Order to
Complainant’s registered email address.2 Complainant did not file an Opening
Brief.
On June 18, 2025, the Board issued an Order to Show Cause requiring
Complainant to explain why the Board should not dismiss this appeal due to
Complainant’s failure to file an Opening Brief. The Board ordered Complainant to
file a response to the Order to Show Cause, as well as a copy of his Opening Brief,
by July 2, 2025 (14 days from the Order to Show Cause). The Board cautioned
Complainant that if it did “not receive Complainant’s response to this [Order to
Show Cause] and Opening Brief within fourteen (14) calendar days of the issuance
of this [Order to Show Cause], the Board may dismiss the appeal without further
notice to the parties.” Again, the Board issued the Order to Show Cause through the
EFS system, which automatically sent a copy of the Order to Show Cause to
Complainant’s registered email address.3 Complainant did not file a response or an
Opening Brief. Consequently, the Board dismissed Complainant’s appeal on July
17, 2025.
Nearly a month later, on August 14, 2025, Complainant filed a “Motion to set
aside decision and order dismissing Petition for Review” (Motion). Complainant
stated that he did not receive the Briefing Order or Order to Show Cause and
requested the opportunity to file an Opening Brief. Complainant did not file his
Opening Brief with the Motion. Respondent did not file an opposition to the Motion.
We interpreted Complainant’s Motion as a request for reconsideration and
issued an Order Granting Reconsideration on September 16, 2025. We determined
that the particular circumstances of the case justified granting reconsideration and
reopening this appeal. As we explained in the Order Granting Reconsideration, EFS
system records reflected that although Complainant was served with the Order to
2 As explained below, the EFS system did not send the Briefing Order to the parties
due to a technical error.
3 Unlike the Briefing Order, the EFS system sent the Order to Show Cause to the
parties.

3
Show cause via email on June 18, 2025, the EFS system did not send the Briefing
Order to Complainant due to a system error. Thus, while Complainant had notice of
his obligation to respond as of June 18, 2025, Complainant did not receive the
Briefing Order, which originally laid out the parties’ briefing obligations and several
other important pieces of information about this appeal.
In the Order Granting Reconsideration, we ordered Complainant to file an
Opening Brief by October 24, 2025 (28 days from the Order Granting
Reconsideration). We also warned Complainant that if we did not receive
Complainant’s Opening Brief as ordered, we may dismiss the appeal without
further notice to the parties. EFS records confirm that the system sent the Order
Granting Reconsideration electronically to Complainant’s email address of record.
The Board also sent an email to Complainant’s email address of record with a
courtesy copy of the Order Granting Reconsideration attached. Once again, though,
Complainant did not file an Opening Brief and the Board has not heard from
Complainant since we reopened his case.
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.”4 Pursuant to this authority, the Board “may dismiss a complaint in a case in
which the complainant failed to comply with the Board’s orders.”5 We previously
warned Complainant that failing to file an Opening Brief as ordered could result in
immediate dismissal of his appeal. Despite providing this warning, and despite
Complainant asserting that he wished to file an Opening Brief, Complainant has
not filed an Opening Brief, contacted the Board, or otherwise attempted to
prosecute his appeal since it was reopened. Accordingly, we DISMISS
Complainant’s appeal.6
4 Gonzales v. Global Crossing Airlines, ARB No. 2025-0040, ALJ No. 2024-AIR-00029,
slip op. at 2 (ARB May 16, 2025) (citation omitted) (dismissing appeal where complainant
failed to file opening brief or respond to order to show cause).
5 Id. (citation omitted).
6 See McDowell v. Eagle Intermodal, Inc., ARB No. 2022-0046, ALJ No. 2020-STA-
00054, slip op. at 3-4 (ARB Mar. 27, 2023). As in this case, in McDowell the Board
dismissed the appeal where the complainant failed to file an opening brief or respond to an
order to show cause. Id. at 2. The complainant then moved for reconsideration, claiming,
like Complainant here, that he did not receive the Board’s orders. Id. at 2-3. The Board
granted reconsideration and reopened the case. Id. at 3. Again, though, the complainant did
not file an opening brief as ordered. Id. Consequently, the Board dismissed the appeal. Id.
at 3-4.

4
SO ORDERED.
ELLIOT M. KAPLAN
Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge