Peters & Garman Construction (Commission decision, February 11, 1992)

Plain-English summary

Peters & Garman Construction failed to answer the Secretary of Labor's civil penalty petition and the judge's order to show cause. Chief Administrative Law Judge Paul Merlin entered a default order and assessed the Secretary's proposed $40 penalty. The parties later asked to rescind the default order and confirm their settlement, but the Commission could not evaluate the explanation for the failure to respond on the existing record. The Commission vacated the default order and remanded the case so Peters & Garman could present its position to the judge, who could then address relief from default and the settlement.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 820(k) and 823(d)(2); 29 C.F.R. §§ 2700.65(c) and 2700.70(a)
• Outcome: The default order was vacated and the case was remanded for further proceedings.
• Key point: The Commission treated the parties' letter as a timely petition for discretionary review and remanded for the operator to present its explanation for the default.

Full text (FMSHRC public release)

CCASE:
MSHA V. PETERS & GARMAN
DDATE:
19920211
TTEXT:
February 11, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. WEST 91-370-M

PETERS & GARMAN CONSTRUCTION

BEFORE: Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners ORDER BY THE COMMISSION: In this proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), Commission Chief Administrative Law Judge Paul Merlin issued an Order of Default on January 2, 1992, finding respondent Peters & Garman Construction ("P&G") in default for failure to answer the civil penalty petition filed by the Secretary of Labor and the judge's order to show cause. The judge assessed the civil penalty of
$40 proposed by the Secretary. For the reasons that follow, we vacate the default order and remand this case for further proceedings. On January 28, 1992, the Commission received a letter dated January 22, 1992, in which counsel for the Secretary requests, on behalf of both parties, that Judge Merlin rescind the previously issued default order and enter an order confirming the settlement agreement negotiated between the parties. Counsel for the Secretary explains that he was delayed in submitting the settlement agreement because respondent's counsel was temporarily out-ofstate. The judge's jurisdiction over this case terminated on January 2, 1992, when his decision was issued. 29 C.F.R. § 2700.65(c). 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 of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). Here, the letter received by the Commission on January 28 1992, seeks relief from the judge's default order. We will treat that letter as a timely petition for discretionary review of the judge's default order. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).
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It appears from the record that an explanation for P&G's failure to respond to the judge's order to show cause may have been raised and that the parties have been engaged in settlement negotiations. We are unable to evaluate the merits of the explanation on the basis of the present record. We

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will afford P&G the opportunity to present its position to the judge. See, e.g., Blue Circle Atlantic, Inc., 11 FMSHRC 2144, 2145 (November 1989). If the judge determines that final relief from default is appropriate, he shall also take appropriate action with respect to the parties' settlement agreement. 30 U.S.C. § 820(k). Accordingly, we grant P&G's petition for discretionary review, vacate the judge's default order, and remand this matter for proceedings consistent with this order.