Burwick, employed by Burwick Construction Co.

Plain-English summary

The ALJ entered a default order against Glen Burwick, an employee of Burwick Construction Company, after he failed to answer a proposed civil penalty or an order to show cause. The judge assessed the Secretary's proposed $400 penalty. The Commission treated a later letter as a timely petition for discretionary review, vacated the default order, and remanded the case. The ALJ was directed to determine whether a default order was warranted after considering the respondent's position.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The $400 default penalty order was vacated and the case was remanded for further proceedings.
• Key point: A timely letter responding to the proposed penalty may be treated as a petition for discretionary review when the record does not show whether default is warranted.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GLEN BURWICK
DDATE:
19930521
TTEXT:

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                              May 21, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 92-341-M
:
GLEN BURWICK, :
Employed by Burwick :
Construction Co. :
:

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

                                     ORDER

BY THE COMMISSION:

  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 22,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default,
finding respondent Glen Burwick, an employee of Burwick Construction Co., in
default for failing to answer the notice of proposed civil penalty filed by
the Secretary of Labor or the judge's February 9, 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.

  The Commission has received a letter from Ms. Tanya Burwick dated April

27, 1993, stating that on February 22, 1993, Glen and Therell Burwick
responded to the Proposal, showing their opposition to the charges brought
against them. The February 22 letter contained no docket numbers and was
filed only in the official record in Therell Burwick, emp. by Burwick
Construction Co., Docket No. CENT 92-340-M, a related case.

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

issued on April 22, 1993. 29 C.F.R. 2700.69(b). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
of its issuance. 30 U.S.C. 823(d)(2); 29 C.F.R. 2700.70(a). We deem the
April 27 letter to be a timely filed Petition for Discretionary Review, which
we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September
1988). On the basis of the present record, we are unable to evaluate the
merits of the respondent's position. In the interest of justice, we remand
this matter to the judge, who shall determine whether a default order is
warranted.

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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