Kiah Creek Mining Company

Plain-English summary

Kiah Creek Mining Company failed to answer a proposed civil penalty assessment and an ALJ's order to show cause, so the ALJ entered a default order and assessed the Secretary's proposed $94 penalty. Kiah Creek's mine manager later sent a letter seeking reconsideration and included documents showing earlier communications with the Commission and the Department of Labor. The Commission treated the letter as a timely petition for discretionary review, 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: The Commission may treat a timely letter seeking reconsideration as a petition for discretionary review when the ALJ's jurisdiction has ended.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. KIAH CREEK MINING
DDATE:
19930623
TTEXT:

                              June 23, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 92-964
:
KIAH CREEK MINING COMPANY :

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 June 1,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Kiah Creek Mining Co. ("Kiah Creek") for failing to answer the proposal for
assessment of civil penalty filed by the Secretary of Labor or the judge's
March 23, 1993, Order to Show Cause. The judge assessed the civil penalty of
$94 proposed by the Secretary. For the reasons that follow, we vacate the
default order and remand this case for further proceedings.

  On June 7, 1993, the Commission received a letter addressed to Judge

Merlin from Kiah Creek's mine manager, Mike Gipson, requesting
reconsideration. Enclosed documents include: (1) a notice of appearance form
dated November 27, 1992; (2) a letter dated November 27, 1992, from Gipson to
the Commission's executive director, requesting reduction of the proposed
civil penalty; (3) a letter dated March 30, 1993, to the Department of Labor's
Regional Solicitor's Office in Nashville, in which Gipson refers to the
judge's show cause order and encloses a copy of Kiah Creek's notice of
appearance; and (4) a return receipt indicating delivery of a document from
Kiah Creek to the regional solicitor's office on April 1, 1993.

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

issued on June 1, 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
Kiah Creek's June 7 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 Kiah Creek'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.

                                 Arlene Holen, Chairman


                                 Richard V. Backley, Commissioner


                                 Joyce A. Doyle, Commissioner


                                 L. Clair Nelson, Commissioner