FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 30, 2011

BEFORE:  Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”).

            On August 24, 2011, Administrative Law Judge L. Zane Gill issued a Default Order entering judgment in favor of the Secretary of Labor and ordering Jet Materials to pay civil penalties of $6,452, $10,000, and $1,671. On September 6, 2011, the Commission received a letter from James Thompson, the former owner of Jet Materials, requesting that the default order be set aside. We construe the letter to be a petition for discretionary review. On September 26, 2011, the Secretary filed an opposition to the petition for discretionary review. For the reasons that follow, we grant the petition, vacate the judge’s order, and remand for further proceedings consistent with this order.

            The judge issued a prehearing order on April 20, 2011. The order required the parties to confer regarding the possibility of settlement, to provide a status report, and, if no settlement was reached, to initiate a conference call to set a date and location for the hearing.

            On July 22, 2011, the Commission received the Secretary’s motion for default judgment. The motion asserted that most of the Secretary’s attempts to reach Jet Materials had been unsuccessful and that Jet Materials had failed to comply with the judge’s prehearing order by failing to participate in a conference call with the judge and the Secretary’s representative to set a date and location for the hearing. Without further proceedings, the judge granted this motion on August 24, 2011.

            The Commission’s procedural rule concerning orders of default, Rule 66, 29 C.F.R. § 2700.66, provides that:

(a) Generally. When a party fails to comply with an order of a Judge or these rules, except as provided in paragraph (b) of this section, an order to show cause shall be directed to the party before the entry of any order of default or dismissal. The order shall be mailed by registered or certified mail, return receipt requested.

(b) Failure to attend hearing. If a party fails to attend a scheduled hearing, the Judge, where appropriate, may find the party in default or dismiss the proceeding without issuing an order to show cause.

            Thus, our rule requires that prior to issuing an order of default, a judge must issue a show cause order unless the party fails to attend a hearing. See Secretary of Labor v. Reb Enterprises, Inc., 18 FMSHRC 311 (March 1996); Patsy v. Big “B” Mining Co., 16 FMSHRC 1937, 1938 (September 1994). Here, the judge did not issue an order to show cause before he entered the default order, as required by Rule 66(a). A party’s failure to attend a scheduled conference call with the judge, although objectionable, is not the equivalent of failure to attend a “scheduled hearing” so as to obviate the need for an order to show cause pursuant to Rule 66(b).

            Accordingly, for the reasons set forth above, Jet Materials’ petition for discretionary review is granted. The default order is vacated, and the case is remanded to the judge for further proceedings in accordance with the Commission’s procedural rules.

                                                                        /s/

                                                                        Mary Lu Jordan, Chairman

                                                                        /s/

                                                                        Michael F. Duffy, Commissioner

                                                                        /s/

                                                                        Michael G. Young, Commissioner

                                                                        /s/

                                                                        Robert F. Cohen, Jr., Commissioner

                                                                        /s/

                                                                        Patrick K. Nakamura, Commissioner

Distribution

James Thompson

P.O. Box 385

Maynard, AZ 72444

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25^th Floor

Arlington, VA 22209

Administrative Law Judge L. Zane Gill

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021