Secretary of Labor v. Kentucky Fuel Corporation

Plain-English summary

Kentucky Fuel did not answer the Secretary's penalty petition, and a show-cause order was later deemed a default order when no response appeared under the correct docket number. The operator showed that it had responded before the deadline but mistakenly labeled its letter “WEVA 2013-1050” instead of “KENT 2013-1050,” while listing the correct assessment control number. The Commission found that the letter was intended for this case and had arrived before the show-cause deadline. It held that Kentucky Fuel was never in default, treated the default order as a nullity, and remanded for further proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. Part 2700
• Outcome: The default order was nullified, and the penalty case was remanded for further proceedings.
• Key point: A timely response with the correct assessment number defeated default despite identifying the wrong docket prefix.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)         

v.

KENTUCKY
FUEL CORPORATION

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Docket
No.  KENT 2013-1050

A.C.
No. 15-18363-329924

BEFORE:    Althen,
Acting Chairman; Jordan, Young, and Cohen, 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 July 14, 2015, the Commission received from Kentucky Fuel
Corporation (“Kentucky Fuel”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it. 

On
January 23, 2014, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Kentucky Fuel’s failure to answer the Secretary of Labor’s
October 22, 2013, Petition for Assessment of Civil Penalty.  By its terms, the
Order to Show Cause was deemed a Default Order on February 24, 2014, when it
appeared that the operator had not filed an answer with the Judge within 30
days.

Kentucky
Fuels claims that it never received the initial Petition for Assessment of
Civil Penalty.  Moreover, it claims that it received the Order to Show Cause on
January 27, 2014, and promptly filed a response on February 6, 2014.  This
Response was received by the Commission on February 11, 2014.  However, while the
Response listed the correct Assessment Control Number, it showed the docket
number as “WEVA 2013-1050” rather than “KENT 2013-1050.” 

The
evidence shows that the operator intended its February 6, 2014, letter to serve
as a response to the Order to Show Cause in KENT 2013-1050, but it mistakenly wrote
“WEVA” instead of “KENT.”  The Commission received Kentucky Fuel’s letter on February
11, 2014, prior to the February 24, 2014, deadline for responding to the Order
to Show Cause.  Therefore, we conclude that the operator was not in default
under the terms of the Order to Show Cause because it timely complied with the
Order.  See Vulcan Constr. Materials , 33 FMSHRC 2164 (Sept. 2011). 
This renders the Default Order a nullity.  Accordingly, KENT 2013-1050 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/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

James
F. Bowman

P.O.
Box 99

Midway,
WV 25878

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450