Deatley Company (ALJ decision, June 23, 1992)

Plain-English summary

Deatley Company requested a hearing in a civil penalty matter, but the Solicitor did not file the penalty petition. The Commission's Docket Office reminded the Solicitor to file it and later issued a show-cause order after the penalty proposal was still missing. The Solicitor did not respond. Judge Paul Merlin dismissed the case because it had been pending for more than a year without the required filing or response.

Decision snapshot

• Cited standards: None stated in the order.
• Outcome: The civil penalty proceeding was dismissed for failure to file a penalty proposal and respond to the show-cause order.
• Key point: A penalty proceeding can be dismissed when the Secretary does not prosecute it or respond to the judge's orders.

Full text (FMSHRC public release)

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

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA), : Docket No. NEST 91-5-M
Petitioner : A. C. No. 10-01658-05505
:
v. : Plant #1
DEATLEY COMPANY,
:
Respondent
:

ORDER OF DISMISSAL
Before: Judge Merlin
On October 1, 1990, the operator's request for a hearing was received by this Commission for docketing.
On January 24, 1992, the Commission's Docket Office tele- phoned the Seattle Solicitor reminding him to file the penalty petition which he said he would do, but did not. On March 6, 1992, the Commission's Docket Office again telephoned the Solici- tor but he did nothing. Finally, on April 29, 1992, an order was issued directing the Solicitor to show cause why this case should not be dismissed for failure to file a penalty proposal. The file contains the return receipt card showing that the Solicitor received a copy of this order on May 4, 1992. The Solicitor has failed to respond. This case is well over a year old and the Commission has heard nothing from the Solicitor.
The Seattle Solicitor in this case routinely fails to respond to show cause orders, orders to submit information and other orders issued by the Chief Administrative Law Judge. It has been necessary to repeatedly remind him of orders which require him to take action. But even these reminders are of no effect. As I have stated on prior occasions, the Office of the Chief Administrative Law Judge is simply too busy to keep calling and writing this Seattle Solicitor. In his constant and continu- al disregard of duly issued orders, this Solicitor stands alone. His persistent dereliction of duty cannot be countenanced.
In light of the foregoing, it is ORDERED that this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge

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Distribution:
Ernest Scott, Esq., Office of the Solicitor, U. S. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 (Certi- fied Mail)
Mr. John Hjaltalin, Division Manager, DeAtley Company, 3665 Snake River Avenue, P. O. Box 648, Lewiston, ID 83501 (Certified Mail)
Douglas White, Esq., Counsel Trial Litigation, Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Hand Delivered)

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