Davis Trucking Company, Inc.

Plain-English summary

This civil penalty proceeding involved Davis Trucking Company's failure to answer the Secretary's proposed civil penalty notice and an administrative law judge's order to show cause. The judge entered an order of default and assessed the proposed $2,000 penalty. Davis's counsel later moved to vacate the default, explaining that the company had been negotiating a settlement and did not understand that a default judgment would be entered during those negotiations. The Commission treated the motion as a timely petition for discretionary review, vacated the default order, and remanded the case for the judge to determine whether default was warranted.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2), 29 C.F.R. § 2700.69(b), and 29 C.F.R. § 2700.70(a)
• Outcome: The Commission vacated the default order and remanded the case for further proceedings.
• Key point: The Commission returned the default question to the judge because the record did not resolve whether default should be imposed while settlement negotiations were ongoing.

Full text (FMSHRC public release)

                             May 27, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 92-421-M
:
DAVIS TRUCKING COMPANY, INC. :

BEFORE: Holen, Chairman; Backley, and Doyle, Commissioners

                              ORDER

BY: Holen, Chairman; Backley, and Doyle, Commissioners

  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 April 23,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Davis Trucking Co. ("Davis") for failing to answer the notice of proposed
civil penalty filed by the Secretary of Labor or the judge's February 24,
1993, Order to Show Cause. The judge assessed the civil penalty of $2,000
proposed by the Secretary. For the reasons that follow, we vacate the default
order and remand this case for further proceedings.

  On April 30, 1993, the Commission received from Davis' counsel a motion

to vacate and set aside the default order. Davis' counsel explained that
Davis had been negotiating a settlement in this matter, and did not understand
that a default judgment would be entered against it during ongoing settlement
negotiations.

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

issued on April 23, 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
Davis' motion 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 Davis' 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