Star Sand Company, Inc.

Plain-English summary

Star Sand Company failed to answer a penalty petition and a show-cause order after mistakenly believing the case was part of a group of matters it was settling. The judge entered a default order and assessed the Secretary's proposed $800 penalty. The Secretary did not oppose Star Sand's request for relief. The Commission treated the request as a timely petition for discretionary review, vacated the default order, and remanded the matter for the judge to decide whether relief from default was warranted.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.60(b), 2700.69(b), and 2700.70(a)
• Outcome: The default order was vacated and the case was remanded for a determination on relief from default.
• Key point: A mistaken belief that a penalty case was included in settlement discussions may support further review of a default order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                     January 29, 2001

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2000-437-M
: A.C. No. 41-03153-05517
STAR SAND COMPANY, INC. :

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

                                         ORDER

BY: Jordan, Chairman; Beatty, Commissioner

    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 December 18, 2000, Chief
Administrative Law Judge David F. Barbour issued an Order of Default to Star Sand Company,
Inc. (“Star Sand”) dismissing this civil penalty proceeding for failing to answer the Petition for
Assessment of Penalty filed by the Secretary of Labor on September 20, 2000, or the judge’s
Order to Respondent to Show Cause issued on November 8, 2000. The judge assessed civil
penalties in the sum of $800 proposed by the Secretary.

    On January 16, 2001, the Commission received from Star Sand a request to vacate the

judge’s default order. Mot. In its request, Star Sand contends that it failed to file an answer
when it received the Secretary’s Petition for Assessment of Penalty in this proceeding because it
mistakenly believed that this case was included in the group of cases that it was in the process of
settling at that time. Id. It requests that the Commission reopen this case. Id. The Secretary
does not oppose Star Sand’s request.

    The judge’s jurisdiction in this matter terminated when his decision was issued on

December 18, 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.

                                     23 FMSHRC 36

Page 2

§ 2700.70(a). We deem Star Sand’s motion to be a timely filed petition for discretionary
review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

    On the basis of the present record, we are unable to evaluate the merits of Star Sand’s

position. 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. See Valle Constr., LLC,
22 FMSHRC 9, 10 (Jan. 2000) (vacating default and remanding to judge where operator did
not answer Secretary’s petition or judge’s show cause order based on its mistaken belief that
it was excused from paying the civil penalties because it was in the process of closing);
Ogden Constructors, Inc., 22 FMSHRC 5, 7 (Jan. 2000) (remanding to a judge where
operator failed to timely file contest because it mistakenly believed that proceeding was
suspended while MSHA conducted investigation). If the judge determines that relief is
appropriate, the case shall proceed pursuant to the Mine Act and the Commission’s
Procedural Rules, 29 C.F.R. Part 2700.

                                         Mary Lu Jordan, Chairman




                                         Robert H. Beatty, Jr., Commissioner




                                   23 FMSHRC 37

Page 3

Commissioners Riley and Verheggen, concurring:

    We would grant the operator’s request for relief here, because the Secretary does not

oppose and the operator has offered a sufficient explanation for its failure to timely respond.
However, in order to avoid the effect of an evenly divided decision, we join in remanding the
case to allow the judge to consider whether the operator has met the criteria for relief under
Commission Procedural Rule 60(b), 29 C.F.R. § 2700.60(b). See Pa. Elec. Co., 12 FMSHRC
1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing
that the effect of a split Commission decision is to leave standing disposition from which
appeal has been sought).

                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




                                   23 FMSHRC 38

Page 4

Distribution

Dorothy Harris, Secretary
Star Sand Company, Inc.
23340 SH 16 South
Van Ormy, TX 78073

Janice H. Mountford, Esq.
Office of the Solicitor
U.S. Department of Labor
525 South Griffin St., Suite 501
Dallas, TX 75202

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department 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

                               23 FMSHRC 39