Secretary of Labor v. Pierce Sand (Commission decision, November 5, 2013)

Plain-English summary

Pierce Sand sought to reopen a penalty case after a show-cause order was treated as a default. The operator showed that the Commission had timely received its answer, but the filing was mistakenly applied only to a companion docket. The Secretary agreed and did not oppose reopening. The Commission held that the default order never effectively became final because Pierce Sand had timely responded, and it returned the case to the Chief Administrative Law Judge for ordinary proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 801 et seq.; Commission Procedural Rules
• Outcome: The purported default was held ineffective, and the penalty case was remanded for further proceedings.
• Key point: A timely answer prevents default even when an administrative filing error assigns it only to a companion case.

Full text (FMSHRC public release)

Jean Ellen
Normal
Jean Ellen
2
1
2013-11-25T20:19:00Z
2013-11-25T20:19:00Z
3
457
2611
Microsoft
21
6
3062
14.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

MicrosoftInternetExplorer4

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

November
5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

PIERCE SAND

Docket No. CENT 2012-128-M

A.C. No. 23-02347-262760

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. (2006) (“Mine
Act”). On March 21,
2013, the Commission received from Pierce Sand a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On August 1, 2012, 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 Pierce Sand’s failure to answer the Secretary of Labor’s November 18, 2011 Petition for Assessment of Civil Penalty.

Pierce Sand asserts that it timely
answered the Show Cause Order and submits a copy of the answer date-stamped by the Commission as received on August 27, 2012. Pierce Sand states that the answer was mistakenly only applied to a companion case, Docket No. CENT 2012-129-M. The Secretary does not oppose the request to reopen, and agrees with the operator’s contentions.

Having reviewed Pierce Sand’s request and the Secretary’s response, we conclude that the Default Order did not effectively become a final order of the Commission because the operator filed a timely response to the Show Cause Order. Accordingly, this case is remanded to the Chief Administrative Law Judge 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:

Bob L. Pierce

Pierce Sand Gilford

220 South Oak

Stanberry, MO 64489

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

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710