U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

BENJAMIN HECKMAN,

ARB CASE NO. 2018-0019

COMPLAINANT,

v.

ALJ CASE NO. 2012-STA-00059

DATE: May 5, 2020

M3 TRANSPORT, LLC; SLT EXPRESS

WAY, INC.; LYONS CAPITAL, LLC;

ROADMASTER GROUP; ROADMASTER

SPECIALIZED, INC.; & ROADMASTER

TRANSPORTATION, INC.,

RESPONDENTS.

Appearances:

For the Complainant:

Benjamin Heckman; pro se; Townshend, Vermont

For the Respondents:

Charles P. Keller, Esq.; Lisa M. Coulter, Esq.; Walker F. Crowson,

Esq.; Snell & Wilmer, LLP; Phoenix, Arizona

BEFORE: Thomas H. Burrell, Acting Chief Administrative Appeals Judge

and James A. Haynes and Heather C. Leslie, Administrative Appeals

Judges. Judge Haynes dissenting.

DECISION AND ORDER

This case arises under the employee protection provisions of the Surface

Transportation Assistance Act of 1982 (STAA). 49 U.S.C. § 31105(a) (2007); 29

C.F.R. Part 1978 (2019). Benjamin Heckman filed a complaint in 2010 alleging that

his former employer and related companies, including M3 Transport, LLC, SLT

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Express Way, Inc., Lyons Capital, LLC, Roadmaster Group, Roadmaster

Specialized, Inc., and Roadmaster Transportation, Inc. (Respondents) violated the

STAA by terminating his employment. On December 22, 2017, a Department of

Labor Administrative Law Judge (ALJ)1 issued an Order of Dismissal dismissing

Heckman’s complaint. For the following reasons we affirm the ALJ’s dismissal.

BACKGROUND

Heckman began working as a driver for Respondents on December 1, 2009.

His employment ended on February 10, 2010. On June 21, 2010, he filed a

complaint with the Occupational Safety and Health Administration (OSHA)

alleging that he was discharged from employment in violation of the STAA. OSHA

investigated the complaint and determined that Heckman engaged in STAAprotected activity that contributed to his discharge, and Respondents therefore

violated the STAA. Respondents filed objections and requested a hearing before an

ALJ.

This case was first assigned to ALJ William Dorsey on October 24, 2012.

Ordinarily, when a respondent objects to OSHA’s findings, the Assistant Secretary

for Occupational Safety and Health proceeds as the prosecuting party. 29 C.F.R. §

1978.108(a)(1). But the Assistant Secretary may withdraw as the prosecuting party

“in the exercise of prosecutorial discretion.” 29 C.F.R. § 1978.108(a)(2). In a letter

dated October 26, 2012, the Assistant Secretary declined to prosecute this case on

Heckman’s behalf. In 2012 and 2013, Heckman attempted to retain counsel but has

represented himself since September 11, 2013. In 2013, the parties attempted to

engage in mediation and settle the complaint but those efforts were unsuccessful.

Between 2013 and 2016, Heckman “began filing a great many motions–

almost all without merit–and generally litigating in a vexatious manner.” Order of

Dismissal at 1. Heckman filed motions to expedite the hearing and to change its

location, two motions for summary decision, motions for default judgment and

sanctions, and requests for hundreds of admissions. Judge Dorsey eventually issued

a protective order relieving Respondents of the burden of responding to Heckman’s

(unmeritorious) motions unless ordered otherwise.

In 2015, Judge Dorsey learned that in February 2014, Heckman experienced

a medical condition. On July 7, 2016, Judge Dorsey issued an order in which he

concluded that it was unclear whether Heckman was “capable of presenting his case

himself, even in short segments, over several sessions” and that conducting the

hearing with Heckman appearing pro se might impair Respondents’ ability to

defend themselves. He therefore ordered that Heckman file within 21 days “a

This matter has been assigned to two administrative law judges. Unless otherwise

indicated, the abbreviation “ALJ” refers to Judge Steven B. Berlin.

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statement from a physician or psychologist that explains the specific limitations his

condition imposes on his physical or mental ability to travel, to present his case in

one session, and to proceed without a lawyer.” Instead, Heckman submitted a letter

from a physician’s assistant and documents from the Social Security Administration

(SSA) representing that Heckman could no longer work as a truck driver or do any

other substantial gainful activity and that he was entitled to Social Security

Disability benefits. Id. at 7, 13.

Judge Dorsey retired at the end of 2016, and this case was reassigned to ALJ

Steven B. Berlin. Heckman continued to file numerous motions and submit various

accusations about the Respondents and their representatives. Id. at 7. The ALJ

issued an Order to Show Cause on June 9, 2017, ordering Heckman to show that he

was competent to testify and able to represent himself, and informing him that if he

was not able to represent himself, he would need to proceed with a guardian ad

litem. Heckman responded but, according to the ALJ, he did not adequately address

the issue of his ability to represent himself.

The ALJ next issued a Second Order to Show Cause on October 20, 2017. The

Second Order to Show Cause included instructions and restrictions on whom

Heckman could nominate to proceed on his behalf, and warned him that if he failed

to comply with the requirement that he nominate a guardian ad litem, the ALJ

would dismiss his complaint. Heckman responded but did not “nominate any person

to be his guardian ad litem” or “submit any of the required statements to support

such a nomination.” Id. at 10.

On December 22, 2017, the ALJ issued an Order of Dismissal dismissing the

complaint because “Complainant is not able to represent himself consistent with

Supreme Court authority and with the due process rights of Respondents.” Id. at 16.

Heckman appealed the ALJ’s ruling to the Board.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board authority to review ALJ

decisions in cases arising under the STAA and its implementing regulations at 29

C.F.R. Part 1978. Secretary’s Order No. 01-2020 (Delegation of Authority and

Assignment of Responsibility to the Administrative Review Board (Secretary’s

discretionary review of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020); 29

C.F.R. § 1978.110(a). We review questions of law presented on appeal de novo, but

are bound by the ALJ’s factual determinations as long as they are supported by

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substantial evidence.2 The ARB reviews an ALJ’s procedural rulings under an

abuse of discretion standard.3

DISCUSSION

The ALJ appears to have provided two overlapping bases for his dismissal:

Complainant’s vexatious litigation and his failure to obtain a guardian ad litem.4

Because we affirm the ALJ’s dismissal on Complainant’s vexatious litigation,5 we

decline to address the ALJ’s order for Complainant to nominate a guardian ad

litem.6

The ALJ’s discussion of Heckman’s medical condition overshadows the ALJ’s

findings concerning vexatious litigation and noncompliance. The record contains

ample evidence supporting the ALJ’s findings that Heckman engaged in vexatious

litigation. The ALJ wrote:

I conclude that Complainant’s lengthy period of selfrepresentation has been vexatious and costly for the

29 C.F.R, § 1978.110(b); Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ

No. 2016-STA-00007, slip op, at 2 (ARB Apr. 30, 2019) (reissued May 9, 2019) (citation

omitted).

2

Stalworth v. Justin Davis Enters., Inc., ARB No. 2009-0038, ALJ No. 2009-STA00001, slip op. at 3 (ARB June 16, 2010).

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Order of Dismissal at 16-17 (“Three attorneys have appeared and withdrawn from

representation of Complainant. Before he was impaired, Complainant elected to proceed

into the litigation representing himself. Complainant is not able to represent himself

consistent with Supreme Court authority and with the due process rights of Respondents.

He refuses the appointment of a guardian ad litem as required in the applicable rules. As

the rules and precedent provide no other options, and Complainant points to none, the

litigation cannot go forward. Accordingly, this matter is DISMISSED in its entirety.”).

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Appellate courts routinely affirm on any ground supported by the record, even if it

differs from the district court’s rationale. Applied Underwriters, Inc. v. Lichtenegger, 913

F.3d 884 (9th Cir. 2019) (affirming district court’s dismissal on alternate grounds despite

district court’s error dismissing as a sanction). “[I]n reviewing the decision of a lower court,

it must be affirmed if the result is correct although the lower court relied upon a wrong

ground or gave a wrong reason.” Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th

Cir. 2011), quoting S.E.C. v. Chenery Corp., 318 U.S. 80, 88 (1943).

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We note that the ALJ did not base his ruling on the medical opinion of a qualified

medical professional. Furthermore, the ALJ cited Indiana v. Edwards, 554 U.S. 164 (2008),

but criminal cases involving a defendant’s life or liberty are distinguishable from

Heckman’s procedural rights under the STAA. See, e.g., Thompson v. Covenant Transp.,

Inc., 2008 WL 2893521 (W.D.N.C. July 23, 2008) (not reported).

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defense and excessively expended the limited resources of

this Office, has (for a long time) precluded the case from

progressing to hearing, and will (according to

Complainant) require accommodations that would place

an undue hardship on this Office and on Respondents and

that ultimately would deprive Respondent of due process.

Under the circumstances, I conclude that, owing to

Complainant’s recalcitrance, this matter cannot progress

to a fair hearing, and I am left with no viable option but

to dismiss it.

Order of Dismissal at 2.

As the ALJ noted, Heckman’s litigation history reveals “outrageous” and

repetitive discovery requests despite multiple warnings to cease and comply with

directives. Id. at 3. The ALJ cited Complainant’s multiple motions for summary

decision which demonstrate that he failed to appreciate how summary decision

works. Complainant filed multiple improper motions to compel despite several

warnings and directives. The ALJ observed that “[the former ALJ] concluded that

Respondents had to be protected against the cost of responding to . . . Complainant’s

many motions that were transparently without merit. [The ALJ] found that: ‘Pretrial litigation in this matter has grown excessive.’ He ordered that Respondents

need not respond to any of Complainant’s motions unless ordered to respond.” Id. at

6. Nonetheless, Complainant continued to file frivolous motions that failed to follow

the requirements of the law and the ALJ’s directives. The case was assigned to a

new ALJ and the frivolous motions continued. Id. at 7.

Upon learning of Complainant’s medical condition, the ALJ explored the

availability of a guardian ad litem before dismissing Complainant’s case, but this

does not change the underlying vexatious case history supporting dismissal.

Ultimately, the ALJ found that Complainant was unable to represent himself and

had not taken measures to remedy that deficiency. Id. at 12. The ALJ wrote:

The history of the litigation also supports an inference

that Complainant is unable or at least is having difficulty

complying with the administrative law judge’s orders,

exercising judgment in deciding what motions to file and

what discovery to seek, and preparing his case for a

hearing.

Id. at 13.

In principal part, the ALJ’s dismissal was a sanction based on Complainant’s

vexatious litigation and inability to represent himself. The ALJ wrote:

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Congress has authorized administrative law judges to

regulate the course of hearings and act to assure the

soundness of the factfinding. Administrative law judges

also have inherent authority to control the cases before

them. The “right of access to the courts is neither absolute

nor unconditional, and conditions and restrictions on each

person’s access are necessary to preserve judicial

resources for all other persons.” “Vexatious law suits

threaten the availability of a well-functioning judiciary to

all litigants.” The authority to dismiss a case comes from

an administrative law judge’s inherent authority to

manage and control his or her docket and to prevent

undue delays in the orderly and expeditious disposition of

pending cases.

Complainant’s pattern of vexatious litigation appeared at

and after the time of his [medical condition]. It included

so many, not only meritless, but actually frivolous

motions that Judge Dorsey had to issue an extraordinary

order relieving Respondents from any obligation to

answer Complainant’s motions absent an order requiring

them to answer.

Id. at 15-16 (footnotes omitted). We conclude that the ALJ was within his discretion

to dismiss the case for failure to follow ALJ directives. An ALJ’s power to dismiss a

case for abusive litigation arises from the control necessarily vested in courts to

manage their affairs so as to achieve the orderly and expeditious disposition of

cases. 29 C.F.R. § 18.57(b)(v); James v. Suburban Disposal Inc., ARB No. 20100037, ALJ No. 2009-STA-00071, slip op. at 5 (ARB Mar. 12, 2010). As the ALJ

noted, he correctly considered the burdens Complainant’s litigation imposed on the

Respondents.7 Pro se litigants, though at times receiving additional considerations,

bear the same burdens and obligations as litigants represented by counsel. Fleming

v. The Shaw Grp., ARB No. 2014-0070, ALJ No. 2013-ERA-00014 (ARB Aug. 19,

2015).

CONCLUSION

See, e.g., Guity v. Tenn. Valley Auth., 1990-ERA-00010, slip op. at 3 (Sec’y May 3,

1995) (Remand Order) (“More than five years have elapsed since Guity filed this

complaint.… I find that this Department has reached the limits of its ability to delay the

prosecution of this case to preserve Mr. Guity’s “day in court.” The rights of a respondent to

have claims against it resolved in a timely fashion must also be considered.…”).

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The record and the ALJ’s findings permit affirming the ALJ’s dismissal on

the basis of vexatious litigation and noncompliance. We therefore AFFIRM the

ALJ’s dismissal of Heckman’s complaint.

SO ORDERED.

Judge Haynes, dissenting:

I respectfully dissent from the decision of my colleagues to affirm the ALJ’s

December 22, 2017 Order of Dismissal regarding this claim. I would reverse the

Order as an abuse of discretion.

My disagreement is primarily that I cannot read the ALJ’s Order as a

dismissal based on two alternate grounds. My reading of this 18-page Order is that

the ALJ dismissed Complainant’s case only because Complainant failed to comply

with ALJ orders to nominate one or more people for the ALJ to appoint as a

guardian ad litem. My colleagues read the Order of Dismissal as a “double barreled”

document where the ALJ tacitly considered the issue of vexatious litigation and

implicitly dismissed Complainant’s appeal on that ground as well as on an explicitly

stated dismissal for failure to comply with ALJ orders to nominate a person to be

appointed guardian ad litem.8

In my reading the ALJ certainly mentioned, but only described,

Complainant’s annoying litigation strategy. The ALJ cited no case precedent on the

issue of vexatious litigation as a basis for dismissal, and he did not weigh

Complainant’s conduct against any legal standard. I see nothing in the ALJ’s Order

which demonstrates that he actively and carefully considered vexatious litigation as

a separate ground for dismissal. In the absence of evidence of such consideration, I

am unable to affirm the ALJ’s decision on the ground of vexatious litigation.

I would also reverse because I find that the ALJs who presided in this case

failed to resolve two essential questions:

The Order of Dismissal states in its last paragraph the following. “Three attorneys

have appeared and withdrawn from representation of Complainant. Before he was

impaired, Complainant elected to proceed into the litigation representing himself.

Complainant is not able to represent himself consistent with Supreme Court authority and

with the due process rights of Respondents. He refuses the appointment of a guardian ad

litem as required under the applicable rules. As the rules and precedent provide no other

options, and Complainant points to none, the litigation cannot go forward. Accordingly,

this matter is dismissed in its entirety.” There is no mention of vexatious litigation as a

reason for the ALJ’s decision to dismiss.

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1. Has the Complainant been shown to need a guardian ad litem by probative

evidence in the record?9

2. Does the ALJ have any authority to require Complainant to supply medical

reports from specialists to document his presumed mental capacity and then

to also nominate a person to act as his Guardian ad litem?10

The Order of Dismissal also contains a puzzling passage: “The recognition of

Complainant’s right to select the guardian is the opposite of how a court would

manage the rights of a person who was, for all purposes, mentally incompetent.” Id.

at 15. This is inconsistent with the basic premise that Complainant needed a

Guardian. Clearly dismissal is not warranted if Complainant failed to nominate a

Guardian that the ALJ felt would be beneficial but then acknowledged was not

required by Complainant’s mental incapacity. If the ALJ has proposed a fine tuning

of the litigation he has offered no rationale or justification for it beyond a generic

authority to control his hearings. It appears to me the ALJ has moved into a

dangerous realm of subjective judgment where consistent rules are impossible.

I find no reason to dismiss this case. There is every reason to set it for

hearing at the earliest possible date.11 The Complainant has been shown

Neither my colleagues nor the ALJ directly address the reported action of the former

ALJ and the level of evidence that would be considered probative in this case. Because

Complainant was eligible for Social Security Disability benefits, “Judge Dorsey added that

conducting the hearing in this manner might ‘impair the employer’s ability to defend’ the

claim. He therefore ordered that Complainant file within 21 days ‘a statement from a

physician or psychologist that explains the specific limitations his condition imposes on his

physical or mental ability to travel, to present his case in one session, and to proceed

without a lawyer.’” Order of Dismissal at 7. I can only assume the ALJ thought expert

medical opinion evidence was essential to any decision on how to proceed with

Complainant’s case. However there are no such reports in the record. There is no expert

evidence to support even the existence of a mental impairment.

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The ALJ has asserted the authority to appoint a guardian on his own authority, but

he never attempted to appoint a guardian ad litem. The ALJ ordered the Complainant to

suggest persons who might fill that role. The ALJ cites no authority to justify his

instruction to Complainant to gather the evidence and provide this list of names for

appointment. “I then ordered Complainant to nominate at least one person to serve as his

guardian ad litem.” Id. at 9. Complainant did not want a guardian and chose not to

cooperate with the ALJ. It is clear the ALJ could not compel the Complainant to bring a

dozen donuts to conference or to pick up the ALJ’s dry cleaning. In what way is the

Guardian Order different?

10

Complainant filed his first claim for retaliation under STAA with the Department of

Labor on June 21, 2010. Id. at 2. OSHA found in Complainant’s favor on August 13, 2012.

Id. The claim was appealed by Respondent and received by the Office of Administrative

Law Judges on or about September 12, 2012. Id. at 3. Naturally this has proved a difficult

case and the ALJs who have wrestled with it deserve the thanks of the parties.

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extraordinary consideration. Discovery should have closed years ago. Prehearing

motions should be done. The parties are entitled to a decision on the merits and a

close to this matter. The ALJ should be allowed to do his job and make findings of

fact and judgments of credibility.

I would reverse the ALJ’s Order of Dismissal in this case because I do not

believe the ALJ dismissed the claim on the ground vexatious litigation. On the

single ground that I can find in the Order before us, I find there is insufficient

medical opinion evidence to justify a conclusion that a guardian ad litem is, or was

required. Further, I see no statutory, regulatory, authority or case law precedent for

the proposition that the ALJ could order Complainant to obtain expert medical

opinions on his mental competence or require that he name a person to be

appointed guardian ad litem.

Finally, I believe a respect for the limited appellate role of the ARB should, in

this case, require us to reverse the Order of Dismissal and remand the case to the

ALJ for his further action. It is a recognition of the importance of the ALJ and his

role in the evidentiary hearing process that we consider this Order of Dismissal

strictly as it comes before us.