D J and M Coal Company, Inc.

Plain-English summary

D J and M Coal Company failed to answer a civil penalty proposal and an Administrative Law Judge's order to show cause, so the Judge entered a default order assessing a $1,000 penalty. The company's president later asked to withdraw the default and stated that the company had requested a hearing but had not received one. The Commission treated the letter as a timely petition for discretionary review, found that the existing record did not permit it to evaluate the company's position, vacated the default order, and remanded the matter to the Judge for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.65(c); 29 C.F.R. § 2700.70
• Outcome: The default order and $1,000 penalty assessment were vacated, and the matter was remanded for further proceedings.
• Key point: When a respondent timely seeks relief from a default but the record is insufficient to evaluate its position, the Commission may vacate the default and return the case to the Judge.

Full text (FMSHRC public release)

CCASE:
MSHA V. D J AND M COAL
DDATE:
19920916
TTEXT:
September 16, 1992
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. KENT 91-1109

D J AND M COAL COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, and Holen, Commissioners(Footnote
1)
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 August 11,
1992, Commission Chief Administrative Law Judge Paul Merlin issued an Order
of
Default, finding respondent D J and M Coal Company, Inc. ("DJ&M") in default
for failure to answer the civil penalty proposal of the Secretary of Labor
("Secretary") and the judge's Order to Show Cause. The judge assessed the
civil penalty of $1,000 proposed by the Secretary. The judge's jurisdiction
over this case terminated when his decision was issued. 29 C.F.R.
 2700.65(c)
Dexter Music, president of DJ&M, filed a letter with Judge Merlin on
August 28, 1992, seeking relief from the judge's default order. Mr. Music
requests that "the default order be withdrawn and that I be allowed the
opportunity to state my position in this matter." As grounds for relief, Mr.
Music states that upon receipt of the "original notice of the proposed
assessment from MSHA in June of 1991, I immediately returned the blue card and
asked for a hearing." He states that DJ&M did not receive "an answer to this
request nor a hearing" and did not receive the judge's Order to Show Cause.

1 Commissioner Nelson did not participate in the consideration or disposition
of this matter.
~1566
Under the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought within 30 days of its issuance by filing a
petition for discretionary review with the Commission. 30 U.S.C. • 823(d)(2);
29 C.F.R. • 2700.70(a). We deem DJ&M's letter to be a timely filed Petition
for Discretionary review. 29 C.F.R. • 2700.70. We are unable to evaluate the
merits of DJ&M's position on the basis of the present record. In the interest

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of justice, we will permit DJ&M to present its position to the judge, who
shall determine whether relief from the default order is warranted.
Accordingly, we vacate the judge's default order and remand this matter
for further proceedings.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner