Ezel / Agency Decisions / nest-91-5-m-alj
FMSHRC ALJ decision Docket NEST 91-5-M Decided June 23, 1992 Procedural Judge Paul Merlin Transcribed from scan

Deatley Company

Deatley Company (FMSHRC NEST 91-5-M): Penalty proceeding dismissed for failure to prosecute

Apply this to your situation

This order from 1992 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1992
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Transcribed from a scanned original: FMSHRC released this decision as an image-only file. The full text below is a machine transcription, proofread against the scan. Check the official release before quoting exact language.
Read the official release (fmshrc.gov)

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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Page 2

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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)

       /gl




                                       1048

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