J & J Sand and Gravel

Plain-English summary

J & J Sand and Gravel was placed in default after it did not answer the Secretary's penalty petition in the Commission's file. The operator had actually sent an answer to the Commission, but the answer was received by the Solicitor instead, and the communication problem was not reported before a show cause order issued. Judge Paul Merlin found that the answer was timely and that the operator should not be defaulted for failing to respond to an order that was issued in error. He vacated the default and assigned the case to Administrative Law Judge David Barbour.

Decision snapshot

• Cited standard(s): None stated in the order
• Outcome: The December 14 default order was vacated, and the case was assigned for further proceedings.
• Key point: A party should not be held in default for failing to answer an erroneously issued show cause order when its underlying answer was timely.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D.C. 20006-3868

                                       January 19, 1999

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-196-M
Petitioner : A. C. No. 03-01735-05512
:
v. :
J & J SAND AND GRAVEL, : J & J Sand & Gravel
Respondent :

                            ORDER VACATING DEFAULT
                             ORDER OF ASSIGNMENT

Before: Judge Merlin

    On December 14, 1998, an order of default was issued in the above-captioned case

directing the operator to pay the proposed penalties immediately because it failed to file an answer
to the Secretary's penalty petition.

    On December 29, 1998, the Solicitor filed a notice of response by the respondent advising

that the operator had filed an answer with his office on August 12, 1998. The Solicitor enclosed
the answer he received from the operator which is dated August 5, 1998, and is addressed to the
Commission. The Solicitor maintains that the default in this case is appropriate because the
operator failed to respond to the show cause order issued on October 19, 1998.

      Under Commission precedent, a problem in communication or with the mail may justify

relief from default. Con-Ag, Inc., 9 FMSHRC 989, 990 (June 1987); United Rock Products
Corp., 14 FMSHRC 79 (January 1992); Lynx Coal Company, 15 FMSHRC 979 (June 1993);
AMI Construction, 16 FMSHRC 670 (April 1994); Sandy Jones Construction, 16 FMSHRC
2375 (December 1994). It appears that such a problem occurred in this case. Furthermore, the
operator's August 5 answer was a timely response to the penalty petition which was filed on
August 3, 1998. Consequently, the October 19 show cause order should not have been issued in
the first place. I reject the Solicitor's argument that default is warranted because the operator did
not respond to the show cause order. Failure to respond to an order that was erroneously issued
is not grounds for a default. Indeed, if the Solicitor had timely advised the Commission of the
operator's answer, no show cause would have been issued. Therefore, I find that relief from the
default is warranted.

Page 2

In light of the foregoing, the December 14 order of default issued in this case is hereby

VACATED.

   This case is hereby assigned to Administrative Law Judge David Barbour.

    All future communications regarding this case should be addressed to Judge Barbour at

the following address:

           Federal Mine Safety and Health
                   Review Commission
           Office of Administrative Law Judges
           Two Skyline Place, Suite 1000
           5203 Leesburg Pike
           Falls Church, VA 22041

           Telephone No. 703-756-5232
           Telephone No. 703-756-6201 (Fax)


                                         Paul Merlin
                                         Chief Administrative Law Judge

Distribution: (Certified Mail)

Brian L. Pudenz, Esq., Office of the Solicitor, U. S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202

Mr. Bill Warford, J & J Sand and Gravel, 15902 Highway 70, Benton, AZ 72015

/gl

                                            2

Page 3

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006-3868

                                           Brian L. Pudenz, Esq.
                                           Office of the Solicitor
                                           U. S. Department of Labor
                                           525 Griffin Street, Suite 501
                                           Dallas, TX 75202

Page 4

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006-3868

                                           Mr. Bill Warford
                                           J & J Sand and Gravel
                                           15902 Highway 70
                                           Benton, AZ 72015