Rogers Group, Inc. (Commission decision, April 19, 2007)

Plain-English summary

A chief administrative law judge entered default against Rogers Group after it did not answer the Secretary’s penalty petition or respond to a show-cause order. Rogers timely wrote to the Commission that it believed it had submitted the correct paperwork, had little experience with Commission proceedings, and now understood how to continue its contest. The Secretary did not oppose the request. The Commission treated the letter as a timely petition for discretionary review, granted review, and remanded for the judge to determine whether relief from default was warranted.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.69(b) and 2700.70(a); 30 U.S.C. § 823(d)(2)
• Outcome: The default order was remanded for a determination whether Rogers Group was entitled to relief.
• Key point: A timely informal request from an inexperienced operator may be treated as a petition for review when it seeks relief from default.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

April 19, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROGERS GROUP, INC.

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Docket No. KENT 2007-47-M
A.C. No. 15-18157-98778

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

DIRECTION FOR REVIEW AND 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. (2000) (“Mine Act”). On February 2, 2007, Chief Administrative Law Judge Robert Lesnick issued to Rogers Group, Inc. (“Rogers”) an Order to Show Cause for failure to answer the Secretary of Labor’s petition for assessment of penalty. On April 2, 2007, Chief Judge Lesnick issued an Order of Default dismissing this civil penalty proceeding for failure to respond to the show cause order.

On April 10, 2007, the Commission received from Rogers a letter asserting that it had submitted what it thought was the correct paperwork and had not heard further concerning the case. Rogers also explains that it does not have much experience with Commission proceedings. It states that it now knows what it needs to do to continue its contest and requests that the default be withdrawn. The Secretary has indicated that she does not oppose Rogers’ request.

The judge’s jurisdiction in this matter terminated when his decision was issued on

April 2, 2007. 29 C.F.R. § 2700.69(b). Relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Rogers’ correspondence to constitute a timely filed petition for review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

On the basis of the present record, we are unable to evaluate the merits of Rogers’ position. Having reviewed Rogers’ request, in the interest of justice, we remand this matter to the Chief Administrative Law Judge, who shall determine whether relief from default is warranted, and for further proceedings as appropriate.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Ed Elliott, Safety Director

Rogers Group, Inc.

2182 West Industrial Park Drive

Bloomington, IN 47404

Joseph B. Luckett, Esq.

Office of the Solicitor

U.S. Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021