Contractors Sand and Gravel Supply, Inc. (Commission decision, August 30, 1994)

Plain-English summary

Contractors Sand and Gravel Supply failed to comply with a prehearing order, and the ALJ entered a default decision assessing $15,149 in civil penalties. The company asked the Commission to review the default, stating that it had believed the proceedings would be combined with other citations and suggesting that the large number of citations reflected harassment. The Commission granted discretionary review, reopened the matter, vacated the default order, and remanded for the ALJ to decide whether default was warranted.

Decision snapshot

• Governing authority: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The default order was vacated, the matter was reopened, and the case was remanded for a determination whether default should be entered.
• Key point: A Commission remand may be appropriate when the record is insufficient to evaluate a challenge to an ALJ default order.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONTRACTORS SAND
DDATE:
19940830
TTEXT:

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

SECRETARY OF LABOR,
: Docket Nos. WEST 93-62-M
MINE SAFETY AND HEALTH : WEST 93-406-M ADMINISTRATION (MSHA) : WEST 93-407-M
: WEST 93-463-M
vs. : WEST 93-117-M
: WEST 93-141-M
CONTRACTORS SAND AND : WEST 93-408-M GRAVEL SUPPLY, INC. : WEST 93-409-M
: WEST 93-426-M

O R D E R

These consolidated civil penalty proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988) ("Mine Act"). On July 21, 1994, Administrative Law Judge August F. Cetti issued a Default Decision to Contractors Sand And Gravel Supply, Inc. ("Contractors") for failing to show cause, pursuant to an order issued on June 22, 1994, why default should not be entered for its failure to comply with a prehearing order. The judge ordered Contractors to pay civil penalties of $15,149 to the Secretary of Labor ("Secretary").

The judge's jurisdiction in this matter terminated when his decision was issued on July 21, 1994. Commission Procedural Rule 69(b), 29 C.F.R. 2700.69(b) (1993). 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 within 30 days of its issuance. 30 U.S.C. 823(d)(2); 29 C.F.R. 2700.70(a). On August 19, 1994, the Commission received letter from Contractors stating that it requests review of the default decision. In the letter, Contractors states that it understood that the proceedings in question "were to be combined ÄÄÄÄÄÄÄÄÄÄÄ 1 The Default Decision mistakenly refers to "the Prehearing Order issued on May 5, 1993." Slip op. at 1. That order was stayed by the judge on June 4, 1993, and was superseded by a Second Prehearing Order dated April 6, 1994. The judge issued the show cause order because of Contractors' failure to comply with the Second Prehearing Order. Order to Show Cause at 1.

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with . . . about 120 [other] alleged citations . . ." and that the large number of citations issued to it suggested harrassment.

We deem Contractors' 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 Contractors' position. Accordingly, we reopen this matter, vacate the judge's default order, and remand this matter to the judge, who shall determine whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

Mary Lu Jordan, Chairman

Joyce A. Doyle, Commissioner

Arlene Holen, Commissioner