MEMORANDUM OPINION
AND ORDER

The Board has before it the appeal by Rushton in the above-entitled proceeding, together with a petition by the Bureau of Mines for leave to participate as amicus curiae, and a motion by the United Mine Workers of America (hereinafter UMWA) for extension of time to file appellee's brief originally due on February 1, 1973.

The Board has reviewed the record of this proceeding in light of the procedural question raised on appeal. Rushton contends that it was denied a hearing by the arbitrary action of the Judge in issuing a decision based solely upon the petition and the answer of Rushton.

Rushton alleges a denial of due process where no waiver of hearing is filed, no motion for summary decision is filed by either party, and the Judge renders a decision on the pleadings without notice, hearing or opportunity to present evidence and argument. Rushton relies upon the provisions of section 4.588-Waiver of Evidentiary Presentation-of the Rules and Regulations 2 and section 556(d) of the Administrative Procedure Act. We find also applicable section 554 (c)(1) of the Administrative Procedure Act.

It is elementary administrative law that a denial of the opportunity for hearing in adjudicatory

2 43 CFR 4.588.

$5 U.S.C. § 556 (d).

45 U.S.C. § 554 (c) (1).

80 I.D. No. 10

proceedings is a denial of due process. Although a hearing need not always encompass oral presentation, certain elements are mandatory. Among these is the right to present evidence and argument. The record before us indicates that Rushton was not afforded such opportunity. It here appears to the contrary that the Judge rendered a decision based solely upon the allegations of the petition of UMWA and the answer of Rushton. The Judge found that "Neither party has given any indication that a hearing is desired." We find this statement to be contrary to the intent of the law and regulations. Section 4.588 (b) of the rules specifically provides as follows:

Parties entitled to an evidentiary hearing may waive such right in writing, but unless all entitled parties file timely waivers, a hearing will be conducted. Such waivers must be unequivocal and request the Examiner [Administrative Law Judge] to decide the matter at issue on the pleadings and written record of the case including any stipulation the parties might enter.

In our review we are unable to find any waiver of hearing by either party. The decision that no hearing would be held appears to be solely and arbitrarily that of the Judge who based his ruling on the belief that neither party had specifically indicated that a hearing was desired.

In light of the specific provisions of section 4.588 we must conclude that since neither party waived hearing, it was error, and a denial of due process, for the Judge to conclude that no hearing was required

Decision of Administrative Law Judge at 2 (December 19, 1972).

or desired. We hold, therefore, that the proceeding must be remanded for hearing.

Since the proceeding must be remanded for hearing, no consideration is herein given to the substantive argument of Rushton on appeal. Furthermore, in view of our determination on the procedural issue, we see no need to delay a renand and, therefore, deny the request of UMWA for an extension of time to file its brief to this Board. For the same reason, the request of the Bureau of Mines to appear as amicus curiae is also denied. The Bureau will have full opportunity before the Judge to avail itself of the provisions of section 4.513 of the rules, and to present its views at such hearing.

ORDER

WHEREFORE, in light of the foregoing and pursuant to the authority delegated to the Board by the Secretary of the Interior (43 CFR 4.1(4)), IT IS HEREBY ORDERED:

1. That the decision of the Administrative Law Judge IS VACATED and the case IS REMANDED for hearing in accordance with this opinion:

2. That the motion of the Bureau of Mines to participate as amicus curiae before the Board in this case IS DENIED; and

3. That the motion of counsel for the United Mine Workers of America for an extension of time in which to file a brief IS DENIED.

C. E. ROGERS, JR., Chairman.
DAVID DOANE, Member.

Federal Coal Mine Health and Safety Act of 1969: Reconsideration

After remanding a case because there was no waiver of hearing, the Board will not grant reconsideration to decide if the Administrative Law Judge should be disqualified.

APPEARANCES, Benjamin Novak, Esquire, Richard M. Sharp, Esquire, on behalf of Rushton Mining Company; and Charles L. Widman, Esquire, on behalf of United Mine Workers of America, Local Union 1520, District 2.

INTERIOR BOARD OF MINE OPERATIONS APPEALS MEMORANDUM OPINION AND ORDER

*Not in Chronological Order.

1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1970).

The Board has before it an application filed February 20, 1973, by Rushton for reconsideration of its Order of February 8, 1973, remanding the proceeding for hearing and an opposition thereto filed February 23, 1973, by United Mine Workers of America (hereinafter UMWA).

In support of its application Rushton alleges: (1) that its right to an impartial hearing would be jeopardized if the case is remanded to the same Administrative Law Judge, and (2) that it is prejudiced by the Board's action denying the request of UMWA for extension of time to file its brief on appeal. UMWA in opposition maintains that nothing in the record indicates that the Administrative Law Judge is in any way prejudiced and that there is no justification or basis for the Board to require UMWA to submit a brief.

The Board's remand order was based upon a procedural lack of due process and right to hearing and did not go to the substantive merits of the appeal. Therefore, we do not find that Rushton is in any way prejudiced by reason of the fact that the Board denied UMWA an extension of time to file its brief. The argument of Rushton in this regard is not persuasive. We note that Rushton itself raised the question of due process in its appeal and requested "the right to be heard before decision is rendered." Since the Board has merely remanded this proceeding for hearing we fail to