Carder, Inc.

Plain-English summary

Carder, Inc. failed to answer a civil penalty petition and a judge's show cause order, so the judge entered a default order assessing the Secretary's proposed $691 penalty. Carder later asked to rescind the default and approve a settlement, explaining that it believed the Secretary would submit the agreement. The Commission treated the letter as a timely petition for discretionary review, vacated the default order, and remanded the case. The judge was directed to consider whether final relief from default was warranted and to address the settlement if appropriate.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2), 29 C.F.R. § 2700.65(c), 29 C.F.R. § 2700.70(a), and 30 U.S.C. § 820(k).
• Outcome: The default order was vacated and the case was remanded for further proceedings.
• Key point: A timely letter seeking relief from a judge's default order may be treated as a petition for discretionary review when the record may support an explanation for the failure to respond.

Full text (FMSHRC public release)

CCASE:
MSHA V. CARDER, INC.
DDATE:
19921029
TTEXT:

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                            October 29, 1992

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 92-350-M
:
CARDER, INC. :

BEFORE: Holen, Chairman; Backley, Doyle, Nelson, Commissioners

                                   ORDER

BY THE COMMISSION:

  In this civil penalty 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 September 29, 1992, finding respondent Carder, Inc. ("Carder") in
default for failure to answer either the civil penalty petition filed by the
Secretary of Labor or the judge's order to show cause. The judge assessed the
civil penalty of $691 proposed by the Secretary. For the reasons that follow,
we vacate the default order and remand this case for further proceedings.

  On October 6, 1992, the Commission received a letter dated October 2,

1992, in which Carder requests that Judge Merlin rescind his previously issued
default order and approve a settlement agreement negotiated between the
parties in this case. Carder explains that, at the time the default order was
issued, Carder was in settlement negotiation with the Secretary. Carder
believed that the Secretary would submit the settlement agreement to the judge
and that consequently no further response was required.

  The judge's jurisdiction over this case terminated when his default

order was issued on September 29, 1992. 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). Carder's letter to the Commission seeks relief from the judge'
default order. We will treat the letter as a timely petition for dis-
cretionary review of the judge's default order. See, e.g., Middle States
Resources, 10 FMSHRC 1130 (September 1988).

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It appears from the record that Carder may have a plausible explanation
for its failure to respond to the judge's show cause order. See e.g., Blue
Circle Atlantic, Inc., 11 FMSHRC 2144, 2145 (November 1989). We are unable,
however, to evaluate the merits of this explanation on the basis of the
present record. We will afford Carder the opportunity to present its position
to the judge, who shall determine whether final relief from default is
warranted. See, e.g., Blue Circle, 11 FMSHRC at 2145. 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 Carder's petition for discretionary review, vacate

the judge's default order, and remand this matter for proceedings consistent
with this order.

                                Arlene Holen, Chairman

                                Richard V. Backley, Commissioner

                                Joyce A. Doyle, Commissioner

                                L. Clair Nelson, Commissioner