FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 26, 2010

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

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On April 22, 2009, Chief Administrative Law Judge Robert Lesnick issued to R & K Coal Company, Inc. (“R & K”) an Order to Show Cause for failure to answer the Secretary of Labor’s petition for assessment of penalty. On January 5, 2010, Chief Judge Lesnick issued an Order of Default dismissing this civil penalty proceeding for failure to respond to the show cause order.

            On January 11, 2010, the Commission received from R & K a request to set aside the default order. Attached to its request is a letter from Independent Miners and Associates (“IMA”) addressed to the Chief Judge dated April 24, 2009, that appears to be R & K’s answer to the Secretary’s petition. In addition, a fax cover sheet from IMA to the Regional Solicitor’s Office dated April 24, 2009, is attached to the request.

            The judge’s jurisdiction in this matter terminated when his decision was issued on January 5, 2010. 29 C.F.R. § 2700.69(b). 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). We deem R & K’s request to constitute a timely filed petition for discretionary review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

            R & K allegedly submitted an answer in April 2009 to the Secretary’s petition for assessment of penalty. However, the Commission apparently did not receive R & K’s answer at that time. Accordingly, the judge entered a default judgment against R & K. Based on the present record, we are unable to determine whether R & K timely submitted its answer, and if so, why it apparently was not received.

            Having reviewed R & K’s request, in the interest of justice, we remand this matter to the Chief Administrative Law Judge, who shall determine whether relief from default is warranted, and for further proceedings as appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.  

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner    

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

Jerry W. Lucas, Owner

R & K Coal Co.

642 Suedburg Rd.

Pine Grove, PA 17963

Cindy Rothermel

Independent Miners Assoc.

44 North Crescent, St.

Tremon, PA 17981

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Dept. of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021