Walker Stone Company, Inc.

Plain-English summary

Walker Stone failed to answer the Secretary's civil-penalty proposal and an administrative law judge's show-cause order, leading to a default order assessing $178. The Commission treated the president's timely letter as a petition for discretionary review because it described an earlier request for more time and the company was proceeding without counsel. It vacated the default order and remanded the case so the judge could decide whether final relief from default was appropriate. The Commission did not finally resolve the underlying penalty proceeding.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.5(b), 2700.28, 2700.65(c), and 2700.70(a); 30 U.S.C. § 823(d)(2)
• Outcome: The $178 default order was vacated, and the matter was remanded for the judge to consider relief from default.
• Key point: A pro se operator that says it sought an extension before the default process may receive an opportunity to present its position, even when it asked the Secretary's attorney instead of the judge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                         February 16, 1990

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

      v.                                  Docket No. CENT 89-129-M

WALKER STONE COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                                ORDER

BY THE COMMISSION:

  In this civil penalty proceeding ar1s1ng under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982),
Commission Chief Administrative Law Judge Paul Merlin issued an Order of
Default on January 17, 1990, finding Walker Stone Company, Inc. ("Walker
Stone") in default for failure to answer the Secretary of Labor's civil
penalty proposal and the judge's order to show cause. The judge
assessed civil penalties of $178 as proposed by the Secretary of Labor.
For the reasons that follow, we vacate the default order and remand the
case for further proceedings.

  On January 26, 1990, David S. Walker, Walker Stone's president,

wrote a letter to Judge Merlin asserting that on October 20, 1989, Mr.
Walker had contacted an attorney for the Department of Labor requesting
an extension of time for filing an answer to the Secretary's penalty
proposal until after a ruling from an administrative law judge in
another pending case.

  Judge Merlin's jurisdiction over this case terminated when his

decision was issued. 29 C.F.R. § 2700.65(c). Under the Mine Act and
the Commission's procedural rules, once a judge's decision has issued,
relief from the decision may be sought by filing with the Commission a
petition for discretionary review within 30 days of the decision.
30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Walker Stone's January
26 letter was received by the Commission on January 29, 1990. We will
treat Walker Stone's letter as a timely petition for discretionary

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review. !k.&.:_, Blue Circle Atlantic, 11 FMSHRC 2144 (November 1989).

  The record discloses that on May 25 and 31, 1989, an inspector of

the Department of Labor's Mine Safety and Health Administration ("MSHA")
issued seven citations to Walker Stone. Upon notification by MSHA of
civil penalties proposed for the alleged violations totaling $178,
Walker Stone filed a "Blue Card" request for a hearing before this
independent Commission. On August 24, 1989, counsel for the Secretary
filed the Secretary's penalty proposal with the Commission. When no
answer to the penalty proposal was filed, the judge, on November 1,
1989, issued a show cause order directing Walker Stone to file an answer
within 30 days or show good reason for its failure to do so. As noted,
Walker Stone's president claims to have asked the Secretary's attorney,
on October 20, 1989, for a delay in filing the answer.

  The party against whom the Secretary seeks a penalty must file an

answer with this Commission within 30 days after service of the
Secretary's proposal for penalty. 29 C.F.R. § 2700.S(b) & .28. Thus,
Walker Stone misdirected its request for an extension of time for filing
its answer. The administrative law judge, not counsel for the
Secretary, regulates the course of this review proceeding. We note,
however, that Walker Stone is proceeding pro se and appears to confuse
the roles of the Department of Labor and this independent adjudicatory
Commission in this proceeding. For this reason and because Walker Stone
claims that prior to issuance of the show cause order it sought an
extension of time for filing its answer, we believe that the operator
should have the opportunity to present its position to the judge. .!h.&..:..·
Amber Coal Co., 11 FMSHRC 131, 132 (February 1989).

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   For the foregoing reasons, the judge's default order is vacated

and the matter is remanded to the judge, who shall determine whether
final relief from default is appropriate. See, ~, Kelley Trucking
Co., 8 FMSHRC 1867, 1869 (December 1986). ·

                                Richard V. Backley, Commissioner




                                                 Commissioner

Distribution

David S. Walker, President
Walker Stone Company, Inc.
Box 563
Chapman, Kansas 67431

Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Robert J. Murphy, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout St.
Denver, Colorado 80294

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

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