Hinkle Contracting Corporation

Plain-English summary

Hinkle Contracting petitioned for review after the ALJ issued a decision before receiving Hinkle's response brief. The ALJ acknowledged the inadvertent timing, and the Secretary agreed that the decision should be vacated and the case remanded. The Commission granted discretionary review, vacated the March 9, 1990 decision and order, and remanded for the ALJ to consider the parties' post-hearing briefs. Hinkle was given two weeks from the Commission's order to file its brief.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.65(c) and 29 C.F.R. § 2700.70.
• Outcome: The ALJ decision and order were vacated and the case was remanded for consideration of post-hearing briefs.
• Key point: A decision issued before a party receives the response opportunity promised at hearing must be vacated and reconsidered.

Full text (FMSHRC public release)

CCASE:
MSHA V. HINKLE CONTRACTING
DDATE:
19900404
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                              April 4, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

  v.               Docket No. KENT 90-5-M

HINKLE CONTRACTING CORPORATION

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

                 ORDER

BY THE COMMISSION:

By a petition for discretionary review filed March 23, 1990, Hinkle

Contracting Corp. (Hinkle) seeks review of a decision issued by Commission
Administrative Law Judge Gary Melick on March 9, 1990. 1/ The basis for
Hinkle's petition is that a prejudicial error of procedure was committed
when the judge issued his decision prior to receipt of Hinkle's brief. The
petition requests that the judge's decision and order of March 9, 1990 be
set aside and that Hinkle be allowed two weeks to file a brief in response
to the Secretary's post-hearing brief.

In support of its petition Hinkle avers that at the end of the hearing

in this case held before Judge Melick on January 30, 1990, counsel for the
Secretary requested an opportunity to file a post-hearing brief and that in
granting that request the judge advised Hinkle that its brief in response
would have to be filed two weeks after receipt of the Secretary's brief.
Hinkle further avers that by letter dated March 9, 1990, the Secretary
transmitted its brief to Hinkle. In the meantime, the judge issued his
decision on the matter on March 9, 1990, without benefit of Hinkle's brief
in response to the Secretary.

Page 2

1/ Respondent Hinkle's March 23, 1990 filing is in the nature of a motion
to set aside Judge Melick's March 9, 1990 decision and order and is
directed to the judge himself. By operation of Commission Procedural
Rule 2700.65(c), 29 CFR 2700.65(c), a judge's jurisdiction terminates
when his decision is issued by the Commission's Executive Director, as
was the case here. The Commission is therefore treating Hinkle's motion
as a petition for discretionary review pursuant to Commission Procedural
Rule 2700.70. 29 CFR 2700.70. See Capitol Aggregates Inc., 2 FMSHRC 1040
(May 1980).

Page 3

~600
By letter of March 27, 1990, the judge acknowledged the inadvertent
issuance of his March 9, 1990 decision without consideration of the brief
of either party and suggested that the Commission might wish to consider
a remand of the proceedings for such consideration. On March 30, 1990
the Secretary filed a response in this matter agreeing that under the
circumstances the judge's decision should be vacated and the case remanded
to the judge for further consideration of the parties' post-hearing briefs.

Having considered the parties' and the judge's positions, we find
that our decision in Green River Coal Co., 11 FMSHRC 800 (May 1989) is
dispositive of this matter. We therefore grant Hinkle's petition for
discretionary review, vacate the judge's March 9, 1990 decision and order,
and remand the case to the judge for further consideration in light of the
parties' post-hearing briefs. Respondent Hinkle shall have two weeks from
the date of this order to file its post-hearing brief with the judge.

Page 4

~601
Distribution

Robert M. Connolly, Esq.
Stites and Harbison
600 West Main Street
Louisville, Kentucky 40202

Anne T. Knauff, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215

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

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041