L.M. Karnes, Employed by J.H. Shears Sons, Inc.

Plain-English summary

Chief Administrative Law Judge Paul Merlin entered a default order against L.M. Karnes after Karnes did not answer the Secretary's proposed civil penalty notice or an order to show cause. The judge assessed the proposed $400 penalty. The Commission treated Karnes's later letter as a timely petition for discretionary review, reopened the proceeding, and granted review. Because the existing record did not allow the Commission to decide whether default was warranted, it vacated the default order and remanded for further proceedings.

Decision snapshot

• Cited authorities: 29 C.F.R. § 2700.69(b); 30 U.S.C. § 823(d)(1); 29 C.F.R. § 2700.1(b)
• Outcome: The default order was vacated and the case was remanded for the judge to determine whether default was warranted.
• Key point: The Commission may reopen a final decision to consider a timely request for relief when the record does not resolve whether default should stand.

Full text (FMSHRC public release)

June 22, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 92-333-M
:
L.M. KARNES, Employed by J.H. SHEARS :
SONS, INC. :

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

                                   ORDER

BY: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

  This civil penalty proceeding arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 23,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
L. M. Karnes for failing to answer the notice of proposed civil penalty filed
by the Secretary of Labor or the judge's February 11, 1993, Order to Show
Cause. The judge assessed the civil penalty of $400 proposed by the
Secretary. For the reasons that follow, we vacate the default order and
remand this case for further proceedings.

  On May 14, 1993, the Commission received a letter from Karnes asserting

that he had not received the Order to Show Cause. Karnes requests that the
Order of Default be vacated.

   The judge's jurisdiction over this case terminated when his decision was

issued on April 23, 1993. 29 C.F.R. § 2700.69(b). This decision has become
final by operation of law, 30 U.S.C. § 823(d)(1). We can consider the merits
of Karnes' submission if we construe it as a request for relief from a final
Commission decision incorporating a petition for discretionary review. See 29
C.F.R. § 2700.1(b) (applicability of Federal Rules of Civil Procedure to
Commission proceedings); Fed. R. Civ. P. 60(b) (relief from judgment or order).
We reopen this proceeding to consider Karnes' letter as a timely filed
Petition for Discretionary Review, which we grant.

  On the basis of the present record, we are unable to evaluate the merits

of Karnes' position. In the interest of justice, we remand this matter to the
judge, who shall determine whether default is warranted. See Hickory Coal
Co., 12 FMSHRC 1201, 1201 (June 1990).

  For the reasons set forth above, we vacate the judge's default order and

remand this matter for further proceedings.

                                Arlene Holen, Chairman

                                Richard V. Backley, Commissioner

                                Joyce A. Doyle, Commissioner

                                L. Clair Nelson, Commissioner