Cougar Coal Company, Inc.

Plain-English summary

Cougar Coal Company did not answer a proposed civil penalty assessment or an ALJ's order to show cause, so the ALJ entered a default order and assessed the Secretary's proposed $1,008 penalty. The Commission received a copy of an earlier letter from Cougar disputing the proposed penalty and treated that letter as a timely petition for discretionary review. The Commission vacated the default order and remanded the case for the ALJ to determine whether default was warranted.

Decision snapshot

• Cited provisions: 30 U.S.C. § 823(d)(2), 29 C.F.R. § 2700.69(b), 29 C.F.R. § 2700.70(a)
• Outcome: The default order was vacated and the case was remanded for further proceedings.
• Key point: A letter disputing a proposed penalty may be treated as a timely petition for discretionary review when the Commission receives it within the review period.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. COUGAR COAL
DDATE:
19930623
TTEXT:

                             June 23, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 92-878
:
COUGAR COAL COMPANY, INC. :

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 May 20,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Cougar Coal Company, Inc. ("Cougar") for failing to answer the August 28,
1992, notice of proposed civil penalty filed by the Secretary of Labor or the
judge's February 22, 1993, Order to Show Cause.(Footnote 1) The judge
assessed the civil penalty of $1,008 proposed by the Secretary. For the
reasons that follow, we vacate the default order and remand this case for
further proceedings.

  On June 1, 1993, the Commission received a copy of a letter from Cougar

dated September 8, 1992, disputing, inter alia, the Secretary's proposed civil
penalty. While this letter appears to be an answer to the Secretary's
proposal for assessment of civil penalty, it was forwarded to the Commission
without explanation or assertion that it had been previously sent to either
the Commission or the Secretary of Labor.

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

issued on May 20, 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
after its issuance. 30 U.S.C. 823(d)(2); 29 C.F.R. 2700.70(a). We deem
Cougar's 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).

1 As noted by the judge in his Order of Default, the file contains a signed
return receipt for the Order to Show Cause.

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

of Cougar's 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, 1202 (June 1990).

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

remand this matter for further proceedings consistent with this order.

                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner


                                Joyce A. Doyle, Commissioner



                                L. Clair Nelson, Commissioner