El Paso Sand Products, Inc.

Plain-English summary

This civil penalty proceeding arose under the Federal Mine Safety and Health Act. An ALJ found El Paso Sand Products in default for failing to answer the Secretary's complaint and a later show-cause order, and assessed a $345 penalty. El Paso told the Commission that it had sent written responses to the Secretary's Dallas Solicitor's Office, rather than filing them with the Commission. The Commission treated that letter as a timely petition, vacated the default order, and remanded so the ALJ could decide whether the filing attempts justified relief from default.

Decision snapshot

• Cited standards: 30 U.S.C. § 801 et seq.; 29 C.F.R. § 2700.5(b) and § 2700.7
• Outcome: The ALJ's default order was vacated, and the matter was remanded for further proceedings.
• Key point: A party that sent responses to the wrong filing office may receive an opportunity to explain the mistake and seek relief from default.

Full text (FMSHRC public release)

CCASE:
MSHA V. EL PASO SAND PRODUCTS
DDATE:
19880819
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, DC
                            August 19, 1988

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

  v.            Docket No. CENT 88-53-M

EL PASO SAND PRODUCTS, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

              ORDER

BY THE COMMISSION:

 This civil penalty proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982). On
July 11, 1988, Chief Administrative Law Judge Paul Merlin issued
an Order of Default finding respondent El Paso Sand Products, Inc.
("El Paso"), in default for failure to answer the Secretary of
Labor's civil penalty complaint and the judge's subsequent order
to show cause and assessing a civil penalty of $345 proposed by the
Secretary. By letter dated July 19, 1988, addressed to Judge Merlin,
El Paso asserted that it had previously responded in writing to the
Secretary's civil penalty complaint and, apparently, the show cause
order as well. Copies of these responses, attached to the July 19
letter, reflect that they were sent to the Secretary of Labor's
Dallas, Texas, Solicitor's Office rather than to this independent
Commission. We deem El Paso's July 19 letter to constitute a timely
petition for discretionary review of the judge's default order. See,
e.g. Mohave Concrete & Materials, Inc., 8 FMSHRC 1646 (November 1986).
We grant the petition and summarily remand this matter to the Judge
for further proceedings.

Page 2

It appears from the record that El Paso, acting pro se,

attempted to file timely written responses to the Secretary's civil
penalty complaint and the judge's show cause order. Although these
documents were apparently sent to the Secretary's Solicitor's Office
and were not filed with the Commission, as required, El Paso may
have been attempting, in good faith, to comply with its filing
responsibilities .. a factor that may justify relief from default.
See, e.g., Upright Mining, Inc., 9 FMSHRC 206, 207 (February 1987).
Under these circumstances, we conclude that El Paso should be afforded
the opportunity to explain its filing attempts to the judge, who shall
determine whether relief from default is appropriate. Cf. Kelley
Trucking Co., 8 FMSHRC 1867, 1869 (December 1986).

Page 3

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For the foregoing reasons, the judge's default order is
vacated and this matter is remanded for proceedings consistent with
this order. El Paso's attention is directed to the requirements
that all further pleadings and papers in this proceeding must be filed
with the Commission and copies of all such documents served on the
Secretary of Labor. 29 C.F.R. $$ 2700.5(b) & .7. 1/

1/ Commission Procedural Rule 5(b) states:

 Where to file. Until a Judge has been assigned to a case,
 all documents shall be filed with the Commission. After a
 Judge has been assigned, and before he issues a decision,
 documents shall be filed with the Judge, except for documents
 filed in connection with interlocutory review, which shall be
 filed with the Commission. After the Judge has issued his
 decision, documents shall be filed with the Commission.
 Documents filed with the Commission shall be addressed to the
 Executive Director and mailed or delivered to the Docket
 Office, Federal Mine Safety and Health Review Commission,
 1730 K. Street, N.W., Sixth Floor, Washington, D.C. 20006.

29 C.F.R. $ 2700.5(b).

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Distribution

Roger Miller, Safety Director
El Paso Sand Products, Inc.
P.0. Box 9008
El Paso, Texas 79982

E. Jeffery Story, Esq.
Office of the Solicitor
U.S. Department of Labor
525 Griffin Street
Suite 501
Dallas, Texas 75202

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006