Westrick Coal Co. (Commission decision, July 20, 1988)

Plain-English summary

Westrick Coal Company failed to timely respond to an administrative law judge's pre-hearing order in a civil penalty proceeding. The ALJ issued a show-cause order, then entered default, dismissed the proceeding, and ordered payment of the assessed penalty after Westrick's mailed response had not yet arrived. The Commission vacated the default order so the judge could consider Westrick's response. The proceeding was remanded for further action.

Decision snapshot

• Governing provisions: None stated in the decision.
• Outcome: The ALJ's default order was vacated and the matter was remanded for further proceedings.
• Key point: The Commission vacated this default so the judge could consider Westrick's response to his earlier orders.

Full text (FMSHRC public release)

CCASE:
MSHA V. WESTRICK COAL
DDATE:
19880720
TTEXT:

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C.
July 20, 1988

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION

v. Docket No. PENN 88-21

WESTRICK COAL CO.

BEFORE: Doyle, Lastowka, and Nelson, Commissioners

ORDER

BY: Doyle, Lastowka, and Nelson, Commissioners

In this civil penalty proceeding respondent Westrick Coal Company ("Westrick") failed to timely respond to the administrative law judge's pre-hearing order. Accordingly, on June 30, 1988, the judge issued an order requiring Westrick to respond by July 11, 1988 or to show cause why the matter should not be dismissed. On July 11, 1988, Westrick, who is acting without an attorney, wrote to the judge in response to the show cause order. The letter was mailed on July 13, 1988, but was not received by the judge until July 18, 1988. In the meantime, on July 15, 1988, the judge found Westrick in default, dismissed the proceeding, and ordered Westrick to pay the assessed civil penalty. Because his jurisdiction over this matter had ended with issuance of the default order, the judge forwarded Westrick's response to the Commission.

Page 2

~873
In order that the judge may consider Westrick's response to his previous orders, we vacate the judge's default order and remand for further proceedings.

Distribution

Raymond Westrick
Westrick Coal Company
R.D. 1, Box 457
Patton, Pennsylvania 16668

Judith Horowitz, Esq.
Office of the Solicitor
U. S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104

Administrative Law Judge Avram Weisberger Federal Mine Safety & Health Review Commission 5203 Leesburg Pike, Suite 1000 Falls Church, Virginia 22041