United Rock Products Corp.

Plain-English summary

United Rock Products failed to answer a civil penalty petition and a judge's show-cause order, so the judge entered a default order assessing the proposed $3,670 penalty. The company's safety director later sent its answer to the wrong office and asked that the default be revoked. The Commission treated the letter as a timely petition for discretionary review, vacated the default order, and remanded the case for the judge to decide whether relief from default was warranted. It reminded United to file future documents with the judge and serve the Secretary's counsel.

Decision snapshot

• Cited provisions: 30 U.S.C. § 823(d)(2) and the Commission's procedural rules in 29 C.F.R. Part 2700.
• Outcome: The default order and $3,670 penalty assessment were vacated, and the case was remanded for further proceedings.
• Key point: A misdirected response may support reopening a default, but the judge must evaluate whether relief is warranted on the full record.

Full text (FMSHRC public release)

CCASE:
MSHA V. UNITED ROCK PRODUCTS
DDATE:
19920127
TTEXT:
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. WEST 91-425-M

UNITED ROCK PRODUCTS CORP.

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 December
18, 1991, finding respondent United Rock Products Corp. ("United") in default
for failure to answer the civil penalty petition filed by the Secretary of
Labor ("Secretary") and the judge's order to show cause. The judge assessed
the civil penalty of $3,670 proposed by the Secretary. For the reasons that
follow, we vacate the default order and remand this case for further
proceedings.
On January 14, 1992, the Commission received a letter dated January 10,
1992, from William Cameron, United's Safety Director, in which Mr. Cameron
requested that Judge Merlin revoke his default order. Cameron explained that
on November 6, 1991, he had mistakenly sent United's answer to the Department
of Labor's Office of Regional Solicitor in San Francisco, California, because
he had directed all previous correspondence to the Secretary's counsel at that
location. Attached to Cameron's January 10 letter was a copy of a letter
dated November 6, 1991, that purports to be United's answer to the Secretary's
civil penalty petition.
The judge's jurisdiction over this case terminated when his decision was
issued on December 18, 1991. 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 the decision. 30 U.S.C. • 823(d)(2); 29 C.F.R.
 2700.70(a). Here, Cameron's letter, received by the Commission on Januar
14, 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).
~80
The record discloses that United filed a "Blue Card" request for a

hearing in this matter in response to notification by the Secretary of the
civil penalties proposed for alleged violations of mandatory safety standards.
On July 10, 1991, counsel for the Secretary served a civil penalty petition on
United. Having received no answer to the petition, the judge issued an order
on October 7, 1991, directing United to file an answer within 30 days or to
show cause for its failure to do so. As noted, Cameron asserts that he sent
United's answer on November 6, 1991, to the Secretary's counsel at the
Solicitor's Office. Under the Commission's rules of procedure, the party
against whom the penalty is sought must file an answer with the Commission
within 30 days after service of the penalty proposal. 29 C.F.R. • 2700.5(b)
and 2700.28.
It appears that United, proceeding without benefit of counsel, may have
confused the roles of the Commission and the Department of Labor in this
adjudicatory proceeding. It also appears that United may have attempted to
respond to the judge's order to show cause but misdirected that response.
Although United has brought the existence of a possible excuse to the
attention of the Commission, we are unable to evaluate the merits of United's
assertions on the basis of the present record. In light of this, we will
afford United the opportunity to present its position to the judge, who shall
determine whether relief from default is warranted. See, e.g., Patriot Coal
Co., 9 FMSHRC 382, 383 (March 1987).
For the foregoing reasons, we grant United's petition for discretionary
review, vacate the judge's default order, and remand this matter to the judge
for further proceedings. United is reminded to file all documents with the
judge, and to serve counsel for the Secretary with copies of all its filings.
29 C.F.R. • 2700.5(b) and 2700.7.