Martin Sales & Processing

Plain-English summary

Martin Sales & Processing failed to respond to discovery requests and an order to show cause, so the ALJ entered a default decision assessing $32,166 in proposed penalties. Martin's attorney later filed a motion stating that a response had been timely filed, although the Commission could not confirm receipt. The Commission treated the motion as a timely petition for discretionary review, vacated the default decision, and remanded the case so the judge could determine whether default was warranted. The Commission did not decide the merits of the alleged violations or penalties.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.65(c) and 2700.70(a)
• Outcome: The default decision was vacated and the case was remanded for further proceedings.
• Key point: A possible timely response and a genuine mail or communication problem can justify allowing the judge to reconsider default.

Full text (FMSHRC public release)

                            April 22, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. WEVA 92-1008
: WEVA 92-1096
v. : WEVA 92-1097
: WEVA 92-1108
MARTIN SALES & PROCESSING :

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

                                  ORDER

BY THE COMMISSION:

  In these civil penalty proceedings arising under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)(the "Mine Act"),
Commission Administrative Law Judge George Koutras issued Summary Default
Decisions ("default decision") on March 29, 1993, finding respondent Martin
Sales & Processing ("Martin") in default for failing to respond to discovery
requests served by the Secretary of Labor and to the judge's February 25,
1993, order to show cause. The judge assessed civil penalties of $32,166 as
proposed by the Secretary. For the reasons that follow, we vacate the default
order and remand this case for further proceedings.

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

issued on March 29, 1993. 29 C.F.R. 2700.65(c). On April 8, 1993, the
judge received from Martin's attorney a Motion to Alter, Vacate, or Amend the
default decision. Martin asserts that it had timely filed a response, dated
March 8, 1993, to the judge's show cause order. Martin does not assert that it
mailed the response by certified or registered mail, return receipt requested,
and the Commission's records do not indicate receipt of Martin's response to
the show cause order.

   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). We will treat Martin's motion as a timely filed petition
for discretionary review of the decision. See, e.g., Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988).

  It appears that Martin may have attempted to respond to the judge's show

cause order. The Commission has noted "under appropriate circumstances a
genuine problem in communication or with the mail may justify relief from
default." Middle States Resources, Inc., 10 FMSHRC at 1131, quoting Con-Ag,
Inc., 9 FMSHRC 989, 990 (June 1987). We are unable, however, to evaluate the
merits of Martin's explanation on the basis of the present record. We will
afford Martin the opportunity to present its position to the judge, who shall
determine whether default is warranted.

  Accordingly, we grant Martin's petition for discretionary review, vacate

the judge's default decision, 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