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[DOCID: f:lke200064.wais]
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SHELLY MATERIALS, INCORPORATED
October 11, 2000
LAKE 2000-64-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
October 11, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 2000-64-M
: A.C. No. 33-00168-05520
SHELLY MATERIALS, INCORPORATED :
BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY: Jordan, Chairman; Riley and Beatty, Commissioners
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act"). On August 7, 2000, Chief Administrative Law Judge
David Barbour issued an Order of Default to Shelly Materials,
Inc. ("Shelly") for failing to answer the petition for assessment
of penalties filed by the Secretary of Labor on May 18, 2000, or
the judge's Order to Respondent to Show Cause issued on June 28,
2000. The judge assessed a civil penalty of $7,000, proposed by
the Secretary.
On August 21, 2000, the Commission received a motion to
reopen from Shelly, along with an answer and its motion to
approve settlement. Shelly contends that the case file for this
matter did not reach its counsel until after the default order
was received. Mot. Shelly asserts that the Secretary does not
oppose its motion to reopen and that the parties have reached a
settlement in this case. Id. In the answer, Shelly admits the
allegations in the citation at issue in this proceeding and
contends that the violation has been abated. Answer. In the
motion to approve settlement, Shelly alleges that the parties
have reached a settlement and agreed to reduce the penalty to
$4,300. Mot. to Approve Settlement. Shelly requests the
Commission to reopen this matter. Mot.
On August 24, 2000, the Secretary filed a response to
Shelly's motions, indicating that she does not oppose Shelly's
motion to reopen. S. Letter dated Aug. 24, 2000. The Secretary
clarifies that the parties have not reached a settlement, but
that trial counsel for the Secretary has stated to Shelly's
counsel that, if the case is reopened, the Secretary will be
willing to discuss settlement. Id.
The judge's jurisdiction in this matter terminated when his
decision was issued on August 7, 2000. 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 within 30 days of its issuance. 30 U.S.C.
� 823(d)(2); 29 C.F.R. � 2700.70(a). On September 18, 2000, the
Commission issued a direction for review, construing Shelly's
motion to reopen as a petition for discretionary review. On
September 26, 2000, an order was issued staying briefing in this
matter pending the Commission's consideration of Shelly's request
for relief.
On the basis of the present record, we are unable to
evaluate the merits of Shelly's position and would remand the
matter for assignment to a judge to determine whether relief from
default is warranted.[1] See Fielding Hydroseeding, 16 FMSHRC
2399, 2400 (Dec. 1994) (remanding to judge where operator failed
to answer Secretary's penalty proposal due to a change in address
and misunderstanding in mail pickup); Hickory Coal Co., 12 FMSHRC
1201, 1202 (June 1990) (remanding to judge where operator
mistakenly believed that it timely filed answer). Shelly has
failed to provide any explanation for the asserted delay in the
receipt of the case file in this matter by its counsel or to
offer any affidavits to support its position. Cf. Chantilly
Crushed Stone, Inc., 22 FMSHRC 17, 18-19 (Jan. 2000) (granting
operator's request to reopen where operator claimed it failed to
timely file hearing request due to inexplicable delays in postal
service and provided an affidavit and copy of signed and dated
green card to support its allegations). Accordingly, in the
interest of justice, we vacate the default order and remand this
matter to the judge, who shall determine whether relief from
default is warranted.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution:
Paul D. Rice, Esq., Shelly Materials, Inc., 600 Shepherd Avenue,
Cincinnati, OH 45215
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
Chief Administrative Law Judge David Barbour, Federal Mine Safety
& Health Review Commission, 1730 K Street, N.W., Suite 600,
Washington, D.C. 20006
**FOOTNOTES**
[1]: In view of the fact that the Secretary does not oppose
Shelly's motion to reopen this matter for a hearing on the
merits, Commissioner Verheggen concludes that the motion should be
granted.