Secretary of Labor, MSHA v. Bob Bak Construction (Commission decision, January 28, 2014)

Plain-English summary

Bob Bak Construction asked the Commission to reopen a penalty case after a show-cause order was treated as a default. The operator produced an answer that it had mailed to MSHA and the Commission months before the show-cause order, and the Secretary agreed that the record showed proper filing and service. The Commission held that the show-cause order never became a default because the operator had already answered the penalty petition. It therefore returned the case to the assigned judge for further proceedings. The ruling restored the operator's opportunity to litigate the penalty case.

Decision snapshot

• Governing authority: 30 U.S.C. § 801 et seq.; Commission Procedural Rules
• Outcome: The purported default was treated as ineffective, and the case was remanded for further proceedings.
• Key point: A default cannot rest on failure to answer when the record shows that the operator timely filed and served an answer.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

January
28, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

BOB BAK CONSTRUCTION

Docket No.
CENT 2011-372-M

A.C. No. 39-01328-243566

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

ORDER

BY
THE COMMISSION:

This matter arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). On January 10, 2014, the Commission received from Bob Bak Construction (“Bob Bak”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On December 14, 2011, the Chief
Administrative Law Judge issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Bob Bak’s perceived failure to answer the Secretary’s March 11, 2011 Petition for Assessment of Civil Penalty.

Bob Bak asserts that it answered
the penalty petition and encloses a copy mailed to MSHA and the Commission on April 19, 2011. Bob Bak further states that it was unrepresented by counsel at the time it received the Show Cause Order and thought no further action was necessary after responding to the penalty petition. The Secretary of Labor does not oppose the request to reopen, and notes that the documentary record indicates that an answer to the penalty petition was properly filed and served on the Secretary.

Having reviewed Bob Bak’s request and the Secretary’s response, we conclude that the Show Cause Order did not effectively become a Default Order because the operator had filed a response to the penalty petition. Accordingly, because this case was assigned to Administrative Law Judge William B. Moran, we are remanding it to him for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan                   

Mary Lu Jordan, Chairman

/s/Michael G. Young                 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.               

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura                

Patrick K. Nakamura, Commissioner

/s/ William I. Althen                  

William I. Althen, Commissioner

Distribution:

Christopher D. Pence, Esq.

Hardy Pence, PLLC

500 Lee Street, East, Suite 701

P.O. Box 2548

Charleston, WV 25301

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

U.S. Dept. Of Labor                                                  

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge William B. Moran

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004