<DOC>
[DOCID: f:d99o.wais]
IN THE MATTER OF: CONNIE PRATER
February 29, 2000
D 99-1
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
February 29, 2000
IN THE MATTER OF: : DISCIPLINARY PROCEEDING
CONNIE PRATER, :
: Docket No. D 99-1
ORDER GRANTING WITHDRAWAL OF COUNSEL
AND
ORDER TO SHOW CAUSE
This disciplinary proceeding is before me on referral from
the Commission pursuant to Rule 80, 29 C.F.R. � 2700.80. On
December 20, 1999, counsel for the Respondent filed a letter
stating: "I am writing to inform the Court that Ms. Connie
Prater will be unable to proceed in this matter due to unexpected
health reasons. Therefore, please withdraw my appearance for Ms.
Prater. Further, please be advised that Ms. Prater will not make
any further appearances before the Court." In his response to
the letter, the Prosecutor pointed out that it was not clear
whether the Respondent was requesting a continuance because of
her "unexpected health" problems or whether she no longer
intended to contest the charges in this proceeding.
On January 24, 2000, counsel for the Respondent filed a
response to the Prosecutor's letter. Unfortunately, it is not
any clearer as to what Ms. Prater's position in this proceeding
is than the cryptic letter of December 20. He states that Ms.
Prater "is currently fighting for her life against what I
understand is a recurring cancer," but that he did not "intend to
disturb Ms. Prater during her illness to obtain `sworn
affidavits' from her or her medical doctors." On the other hand,
he states that: "I can represent to the Court without even
discussing it with Ms. Prater that she would never" consent to an
order determining her culpability for ethical misconduct.
Counsel concludes by stating: "This proceeding, and the extreme
infrequency with which she even participated in Commission
proceedings in the past, is simply too remote to the core
activities in her life to permit her to focus on this matter as
she originally intended."
Counsel closed his January 24 letter by reiterating:
Finally, because I am essentially
without a client, I indicated that I wished
to withdraw from this case as well. I would
appreciate the Court's advice as to whether
it desires a formal motion pursuant to Rule
2700.3 or whether such a motion is
unnecessary in the event that the Court will
shortly resolve this matter.
Turning to the matter of withdrawal first, Commission Rule
3(d), 29 C.F.R. � 2700.3(d), provides that: "Any representative
of a party desiring to withdraw his appearance shall file a
motion with the . . . Judge." Thus, counsel for the Respondent
should have filed a motion if he wanted to withdraw. However,
since the letter plainly states his position, I will treat it as
a Motion to Withdraw rather than require the filing of another
document. Accordingly, the request to withdraw is GRANTED. With
the exception of this order, no further documents in this
proceeding will be served on counsel. This, and all further
documents, will be served directly on the Respondent.
Next, as the Prosecutor correctly observed in his response
to the January 24 letter, if Ms. Prater desires that this
proceeding be continued until such time as her illness permits
her to participate, she must accompany her request with an
affidavit from her treating physician setting forth the nature of
her illness, how long she has been ill, the reason the illness
renders her incapable of participating in the proceedings, and
the probable length of time she will be unavailable before the
proceeding can resume. Such an affidavit may not be conclusory,
but must set forth a medical history and prognosis of Ms.
Prater's condition, substantiate the medical basis for concluding
that her health conditions preclude her from participating in the
proceedings at this time and identify any medical restrictions
that should be placed on her participation in pretrial
examination or at trial.
If the Respondent is not seeking a continuance, but does not
intend to participate in the proceedings at all, she should be
aware that failure to participate will result in her being found
in default and the issuance of a disciplinary order, "which may
include reprimand, suspension, or disbarment from practice before
the Commission." 29 C.F.R. � 2700.80(c)(3). In this connection,
Commission Rule 66(a), 29 C.F.R. � 2700.66(a), requires that:
"When a party fails to comply with an order of a Judge or these
rules . . . an order to show cause shall be directed to the party
before the entry of any order of default . . . ."
Therefore, in accordance with Rule 66(a), the Respondent is
ORDERED TO SHOW CAUSE, within 21 days of the date of this order,
why she should not be held in default in this matter. The
Respondent shall comply with this order by filing a statement
that she is ready to proceed, by requesting a continuance in the
manner set out above, or by filing a statement acknowledging that
she is aware of the possible penalties facing her and stating
that she does not desire to participate in the proceedings.
Failure to comply with this order will result in the issuance of
a disciplinary order adjudging a reprimand, suspension or
disbarment from practice before the Commission. The Prosecutor
shall file comments on the Respondent's response to this order,
or lack of response, within ten days of receiving the response,
or the expiration of time for a response, whichever occurs first.
T. Todd Hodgdon
Administrative Law Judge
(703) 756-6213
Distribution:
Peter A. Eveleth, Special Counsel to the General Counsel,
National Labor Relations Board, 1099 14th Street, N.W., Room
10308, Washington, D.C. 20570-0001 (Certified Mail)
David J. Farber, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W.,
Washington, D.C. 20037 (Certified Mail)
Ms. Connie Prater, 2057 Kentucky Route 850, David, KY 41616
(Certified Mail)
/nj