A-1 Grit Company

Plain-English summary

This civil penalty proceeding involved A-1 Grit Company's failure to answer the Secretary's proposed civil penalty notice and an administrative law judge's order to show cause. The judge entered an order of default and assessed the proposed $942 penalty. A-1 later asserted that it had timely responded and submitted a postal return receipt. The Commission treated A-1's letter as a timely petition for discretionary review, vacated the default order, and remanded the case for the judge to determine whether default was warranted.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2), 29 C.F.R. § 2700.69(b), and 29 C.F.R. § 2700.70(a)
• Outcome: The Commission vacated the default order and remanded the case for further proceedings.
• Key point: When the record does not resolve whether a mine operator timely responded, the Commission may vacate a default and return the matter to the judge for that determination.

Full text (FMSHRC public release)

                              May 27, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 92-527-M
:
A-1 GRIT COMPANY :
:
:

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners

                                     ORDER

BY: Holen, Chairman; Backley and Doyle, Commissioners

  This civil penalty proceeding arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 22,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
A-1 Grit Company ("A-1") for failing to answer the notice of proposed civil
penalty filed by the Secretary of Labor or the judge's October 27, 1992, Order
to Show Cause. The judge assessed the civil penalty of $942 proposed by the
Secretary. For the reasons that follow, we vacate the default order and
remand this case for further proceedings.

  On May 13, 1993, the Commission received a letter from A-1 asserting

that it had timely responded to the judge's show cause order. A-1 attached to
this letter a copy of a U.S. Postal Service return receipt purporting to show
that it filed a response. We note, however, that the order to show cause was
issued on October 27, 1992, not on November 27, 1992, as A-1 asserts. A-1
requests that the order of default be vacated.

  The judge's jurisdiction over this case terminated when his decision was

issued on April 22, 1993. 29 C.F.R. § 2700.69(b). 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). We deem
A-1's letter to be a timely filed Petition for Discretionary Review, which we
grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September
1988). On the basis of the present record, we are unable to evaluate the
merits of A-1's position. In the interest of justice, we remand this matter
to the judge, who shall determine whether default is warranted. See Hickory
Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

  For the reasons set forth above, we vacate the judge's default order and

remand this matter for further proceedings.

                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner


                                Joyce A. Doyle, Commissioner