Secretary of Labor (MSHA) v. Riverway North, Inc. (ALJ decision, March 23, 1984)

Plain-English summary

MSHA sought a $20 civil penalty against Riverway North for an alleged violation of 30 C.F.R. § 71.802 at its dock. Neither party answered the judge's prehearing or show-cause orders, although Riverway North had requested a hearing and filed an answer contesting the allegation. Judge Richard C. Steffey held the Secretary primarily responsible because the Secretary bore the burden of proving the violation. He found the Secretary in default and dismissed the penalty proposal for lack of prosecution. The order makes no finding that the alleged violation occurred.

Decision snapshot

• Cited standard: 30 C.F.R. § 71.802.
• Outcome: Secretary held in default; $20 proposed penalty dismissed without a merits ruling.
• Key point: The Secretary's failure to respond to two procedural orders ended the penalty case.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. RIVERWAY NORTH
DDATE:
19840323
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. KENT 83-132
PETITIONER
A.C. No. 15-11450-03501
v.
RIVERWAY NORTH, INC.,
Riverway North Dock
RESPONDENT

ORDER OF DISMISSAL

Before: Judge Steffey

A prehearing order was issued on May 23, 1983, in the above-entitled proceeding requesting, among other things, that the parties advise me by June 20, 1983, whether a settlement of the issues had been achieved. Although return receipts in the official file show that both parties received the prehearing order 2 days after it was mailed, neither party submitted a reply to the prehearing order. Thereafter, an order to show cause was issued on August 2, 1983, pursuant to the provisions of 29 C.F.R. 2700.63(a), requesting the parties to show cause, by August 30 1983, why they should not be held in default for failure to reply to the prehearing order. Return receipts in the official file show that both parties received the show-cause order within 2 days after it was mailed but, again, neither party has responded to the show-cause order, although nearly 7 months have elapsed since replies to the show-cause order were due.

Since neither party replied to the show-cause order, each party could be held in default for its inaction. The show-cause order provided that if respondent were held in default, it would be ordered to pay the penalty of $20 proposed by the Assessment Office, and that if the Secretary were held in default, the proposal for assessment of civil penalty would be dismissed for lack of prosecution. While respondent did not reply to the prehearing order or to the show-cause order, it did request a hearing with respect to the alleged violation of 30 C.F.R. 71.802, and it also filed an answer in which it fully stated its position. Since the Secretary has the burden of proving that a violation occurred, I believe that the Secretary should be held to be primarily at fault for failure to reply to two different procedural orders and that the proper action for the Secretary's apparent indifference about the disposition of this case should be a dismissal of the action. Therefore, I find that the Secretary of Labor is in default for failure to reply to the prehearing and show-cause orders issued May 23, 1983, and August 2, 1983, respectively.
~732
WHEREFORE, for the reason given above, it is ordered:

The proposal for assessment of civil penalty filed on March 21, 1983, in Docket No. KENT 83-132 is dismissed.

Richard C. Steffey
Administrative Law Judge