Glenn's Trucking Company, Inc.

Plain-English summary

Glenn's Trucking Company failed to answer the Secretary's civil-penalty petition and a judge's order to show cause. The ALJ entered a default order assessing the proposed $2,000 penalty. Glenn's Trucking later sent the Commission an answer and a letter of protest and asked that the default be set aside. The Commission treated the letter as a timely petition for discretionary review, vacated the default order, and remanded for the judge to determine whether relief from default was warranted.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The Commission vacated the default order and remanded for a determination whether relief from default was warranted.
• Key point: When a timely request for review leaves the merits unclear, the Commission may vacate a default order and return the matter to the judge for further consideration.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

                                       April 24, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 95-781
:
GLENN’S TRUCKING COMPANY, INC. :
:

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, 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. (1994) (“Mine Act”). On March 18, 1996, Chief Administrative Law
Judge Paul Merlin issued an Order of Default to Glenn’s Trucking Company, Inc. (“Glenn’s
Trucking”) for failing to answer the petition for assessment of penalty filed by the Secretary of
Labor on October 26, 1995, or the judge’s Order to Respondent to Show Cause issued on
January 25, 1996. The judge assessed the civil penalty of $2,000 proposed by the Secretary.

     On April 1, 1996, the Commission received a letter from Glenn’s Trucking asserting that,

on February 13, 1996, it had sent the Commission its answer and a copy of a “letter of protest”
that it had sent to the Secretary on August 17, 1995. Glenn’s Trucking enclosed copies of its
answer and letter. It requests that the default order be set aside and the case reassessed.

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

March 18, 1996. 29 C.F.R. § 2700.69(b) (1995). 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 within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Glenn’s Trucking’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).

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

Trucking’s position. In the interest of justice, we vacate the default order and remand this matter
to the judge, who shall determine whether relief from default is warranted. See Amber Coal Co.,
11 FMSHRC 131, 132-33 (February 1989).

                                          Mary Lu Jordan, Chairman

                                          Joyce A. Doyle, Commissioner

                                          Arlene Holen, Commissioner

                                          Marc Lincoln Marks, Commissioner

                                          James C. Riley, Commissioner

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