Little Rock Quarry Company, Incorporated

Plain-English summary

The Commission had vacated an earlier dismissal and remanded the case so the Secretary could explain why the prosecution had not complied with prehearing orders. The Secretary argued that the parties had informally settled the matter and that the case should proceed on that basis. Judge Michael A. Lasher, Jr. found that the Secretary still had not shown good cause for the repeated noncompliance and that the respondent had not knowingly agreed to the settlement posture. He denied the Secretary's position, affirmed the dismissal, and left the three proceedings dismissed.

Decision snapshot

• Governing authority: 30 U.S.C. § 801
• Outcome: The dismissal of the three consolidated proceedings was affirmed.
• Key point: An informal settlement does not cure repeated prosecution failures when the respondent lacked material information about the procedural default.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268
April 16, 1993

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-202-M
Petitioner : A.C. No. 03-01475-05526
:
: Docket No. CENT 92-204-M
v. : A.C. No. 03-01475-05528
:
: Docket No. CENT 92-205-M
LITTLE ROCK QUARRY COMPANY, : A.C. No. 03-01475-05529
INCORPORATED, :
Respondent : De Roche Creek Quarry

                       DECISION ON REMAND

Before: Judge Lasher

 On January 15, 1993, I issued a Decision and Order of Dis-

missal as a result of the Secretary's failure to show good cause
for failure to comply with a prehearing order. A brief history
of events is in order.

 As the Commission noted in its remand of February 22, 1993,

the Secretary requested reconsideration on January 27, 1993, in-
dicating that the parties had "informally settled" the case on
January 12, 1993, three days prior to the Dismissal Order.
(Footnote 1) The Commission determined that my jurisdiction
terminated with the issuance of the Dismissal Order on January
15, 1993, and treated the Secretary's Motion for Reconsideration
as a timely petition for discretionary review thereof, and to
afford the Secretary the opportunity to present his position to
me, vacated the Dismissal Order, and remanded the matter for such
action as I deem appro-priate. In compliance therewith, by Order
dated March 2, 1993,
I gave the Secretary until April 2, 1993, to file his position in
writing with me.

1 By Order dated February 10, 1993, I did deny the Secretary's motion for
reconsideration noting that at the time the parties informally settled the
matter on January 12, 1993, it was unknown to Respondent that the Secretary
had not complied with and Order to Show Cause I had issued, nor with a
subsequent Order. Respondent indicates that had it been in possession of all
the facts, it would in all probability have declined the Secretary's offer of
settlement, an allegation which I noted in My Order Denying Motion for
Reconsideration.

 On April 1, 1993, the Secretary filed a "Response to the Order of March

2, 1993, Related to the Dismissal for Want of Pro- secution and Response to
Respondent's Renewed Motion for Dismis- sal." In that it overlooks much of
the history of non-compliance by Petitioner, including the fact that it was
put on notice to take responsive action by written motions to dismiss for its
non-compliance by Respondent on October 19, 1992, and November 13, 1992, a
letter dated November 25, 1992, indicating Petitioner had not communicated
with Respondent, and Orders of various sorts from me dated October 20, 1992,
December 3, 1992, and December 11, 1992, this "Response" does not contain an
accurate depic- tion of events which led to the dismissal of the three dockets
in question. Further, Petitioner's explanation (Footnote 2) that it was a
"scheduling oversight," etc., does not explain away the failure to discharge
the responsibility raised by repeated prompting from both this Judge and
Respondent over the period of time involved from the issuance of the pre-
hearing order on September 14, 1992, to December 3, 1992, when the Order to
Show Cause issued. (Footnote 3) In short, Petitioner did not establish good
cause for its lengthy non-compliance even though repeatedly urged and prompted
to do so. (Footnote 4)

 Petitioner also argues that "... this case has been set- tled," and that

Petitioner has not received any indication from Respondent that Respondent was
not agreeable to the settlement proposal. This argument does not appear
valid. As I previously pointed out, (Footnote 5)

2 In its Response to Order to Show Cause dated December 16, 1992.

3 As the Order to Show Cause indicated, Petitioner was required to show
good cause at that "point in time" why it should not be deemed to have
abandoned its prosecution of this matter. Petitioner's allegations in its
April 1, 1993, Response regarding its compliance, which I do not concur in,
are in any event untimely, and should have been made in response to the Order
to Show Cause.

4 The importance to the Commission's ability to function and process
proceedings to require at least minimal feedback from counsel was described in
my Decision and Order Dismissing Proceeding and will not be repeated here.
Nevertheless, it is believed the particular counsel involved is capable and
conscientious and it is hoped that whatever circumstances were developing
which led to the happenings here have been alleviated. The rights of the
Respondent must also be considered.

5 Order Denying Motion for Reconsideration dated February 1993. Al-
though my jurisdiction to issue such had terminated, this part of the
reasoning therefrom appears applicable.

           "In its Answer opposing Petitioner's
      Motion for Reconsideration, Respondent
      alleges:

      9.    Unknown to Respondent, however, at the
            time of such agreement to compromise, was
            the fact that Petitioner had not complied
            with the Order to Show Cause nor with the
            subsequent Order of 11 December 1992.

      10.   Superior knowledge was had by Petitioner
            on 11 January 1993 at the time of its
            telephone call to Respondent initiating
            its offer to compromise in the sum of
            $760.00, that it had failed to comply with
            the Court's Order.

      11.   Had Respondent been in possession of such
            knowledge, it in all probability, would
            have declined Petitioner's offer ... ."

 Under the circumstances, it would be unreasonable to infer

that the settlement, oral to begin with, would have proceeded
had the facts and procedural posture of the case been known to
Respondent.

 I conclude that Petitioner's position lacks merit, such is

DENIED, and my Decision and Order Dismissing Proceeding dated
January 15, 1993, is AFFIRMED.

                                     Michael A. Lasher, Jr.
                                     Administrative Law Judge

Distribution:

Michael H. Olvera, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)

Mr. Ike Carter, Jr., President, LITTLE ROCK QUARRY, P.O. Box 548,
Benton, AR 72015 (Certified Mail)

ek
Michael H. Olvera, Esq.
Office of the Solicitor
U.S.U.S. Department of Labor
525 Griffin Street #501
Dallas, TX 75202
Mr. Ike Carter, Jr., President
LITTLE ROCK QUARRY
Post Office Box 548
Benton, AR 72015