Westrick Coal Company

Plain-English summary

Westrick Coal Company requested a hearing to contest an alleged violation but did not respond to the administrative law judge's pre-hearing and show-cause orders. The judge entered a default decision, and Westrick petitioned for discretionary review. The Commission majority vacated the default decision and remanded so the operator could explain its failures and the Secretary could object to any request for relief. The dissent would have upheld the default because Westrick repeatedly failed to participate in the hearing process.

Decision snapshot

• Cited standards: None stated in the decision.
• Outcome: The ALJ's default decision was vacated and the matter was remanded for further proceedings.
• Key point: The Commission majority allowed an opportunity to address the unexplained failure to respond to the judge's orders, while a dissent argued that repeated nonparticipation justified default.

Full text (FMSHRC public release)

CCASE:
MSHA V. WESTRICK COAL

DDATE:
19880708

TTEXT:

            FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                           WASHINGTON, D.C.
                               July 8, 1988

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.            Docket No. PENN 88-119

WESTRICK COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle and Lastowka,
Commissioners

             ORDER

BY THE COMMISSION:

Respondent, Westrick Coal Company, after requesting a

hearing to contest an alleged violation, failed to respond to
the administrative law judge's pre-hearing and show cause orders.
On May 25, 1988 the administrative law judge issued a default
decision. Respondent filed a Petition for Discretionary Review
on June 24, 1988.

The record does not reveal the reasons for the Respondent's

failure to respond to the judge's orders. We grant the petition
and vacate the judge's default decision in order to allow this
operator, who is apparently acting pro se an opportunity to
present the reasons for these failures, and for the Secretary to
interpose any objections to relief from the default decision.
Should the judge determine that relief from default is appropriate,
he should proceed with the civil penalty issues in this matter.

Page 2

~854
Commissioner Lastowka, dissenting:

In my opinion the administrative law judge properly entered

an order of default in this proceeding. Indeed, the persistent
failure of Westrick Coal Company to do anything to participate in
the hearing process left the judge no choice. While I endorse the
Commission's previously expressed preference for dispositions on
the merits over procedural defaults, that policy cannot be without
limits. I believe that to order further proceedings in the
circumstances of this case exceeds appropriate bounds.

The Mine Act provides a mine operator with an opportunity

for a hearing before this Commission on citations or orders
issued by MSHA. Westrick exercised this right by requesting a
hearing on citation number 269767. In order to obtain the requested
hearing, however, Westrick was required to participate in the
hearing process. Westrick ignored every request by the judge and
the Secretary that it do so. On March 22, 1988, the judge issued an
order directing that the parties confer and exchange information,
and noting that failure to do so could lead to default. The record
indicates that Mr. Westrick received this order. Westrick did not
respond. On March 25 the Secretary sent a letter to Mr. Westrick
indicating that attempts to contact him by phone had been unsuccessful
and asking Westrick to call the Secretary for purposes of complying
with the judge's order. Westrick did not respond. On April 11 the
Secretary recited the above chronology in a motion filed with the
judge requesting the issuance of a default judgment. Westrick did
not respond. On April 21 the judge issued an order directing Westrick
to comply by May 2 with his previous order or to show cause why it
should not be held in default for failing to respond. The record
shows that Mr. Westrick received this order. Westrick did not
respond. Accordingly, on May 25 the judge issued a default order.
Mr. Westrick's petition for discretionary review of the judge's
default order offers no explanation whatsoever for Westrick's
persistent failure to heretofore respond and participate in the
hearing process. */

In these circumstances the judge committed no error in

defaulting Westrick. The judge and the Secretary have followed the
proper course in pursuing and resolving this proceeding, yet find
themselves having to once again expend their time and resources in an
attempt to provide a hearing to a party who declines to participate in
the hearing process. Because I believe no error was committed below,
I must respectfully dissent from the remand for further proceedings.

Page 3

*/ Westrick's failure to offer any explanation for its failure to
respond distinguishes this matter from other default situations
where colorable claims of confusion over procedures or nonreceipt of
served documents have been raised. See e.g., Rivco Dredging Corp.,
10 FMSHRC 624 (May 1988); Perry Drilling Co., 9 FMSHRC 379 (March
1987); Patroit Coal Co., 9 FMSHRC 382 (March 1987); Doug Connelly
Sand & Gravel, 9 FMSHRC 385 (March 1987).

Page 4

~855
Distribution

Therese I. Salus, Esq.
Office of the Solicitor
U.S. Department of Labor
3535 Market Street
Philadelphia, PA 19104

Mr. Ray Westrick, Owner
Westrick Coal Company
Patton, PA 16668

Judge Avram Weisberger
Office of the Administrative Law Judge
2 Skyline, lOth Floor
Falls Church, Virginia 222041