Upright Mining, Inc.

Plain-English summary

Upright Mining faced citations for failing to submit a respirable dust sample and for inadequate roof support, with a proposed civil penalty of $578. An ALJ entered a default order after Upright did not answer a show-cause order, but the Commission found that Upright had filed its response before the default order and that a snow emergency delayed delivery of the response to the judge. The Commission vacated the default order and remanded the matter so the judge could decide whether relief from default was warranted after Upright explained its late filing. The $578 penalty was therefore not left in place by this order.

Decision snapshot

• Cited standards: 30 C.F.R. § 70.208; 30 C.F.R. § 75.200
• Outcome: The default order was vacated and the matter was remanded for further proceedings.
• Key point: A response filed before a default order may warrant review when unusual circumstances delayed its delivery to the judge.

Full text (FMSHRC public release)

FMSHRC-WDC
FEB 10, 1987

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

  v.              Docket No. KENT 86-115

UPRIGHT MINING, INC.

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

                ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1982), Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default on January 26, 1987, finding Upright
Mining, Inc. ("Upright") in default for failure to respond to a
show cause order. The judge assessed a civil penalty of $578.
The record indicates, however, that shortly before issuance of
the default order Upright in fact had filed with the Commission its
response to the show cause order; due to certain unusual circumstances
this response was not brought to the judge's attention until after
issuance of the default order. We vacate the default order and
remand for further proceedings.

On February 24, 1986, an inspector of the Department of Labor's

Mine Safety and Health Administration (MSHA) issued to Upright a
citation alleging a violation of 30 C.F.R. § 70.208 for failure to
submit a required respirable dust sample. On March 11, 1986, Upright
received an imminent danger order and citation alleging a violation
of 30 C.F.R. § 75.200 for inadequate roof support. Upon preliminary

notification by MSHA of the civil penalties proposed for these alleged
violations, Upright filed a "Blue Card" request for a hearing before
this independent Commission. On June 30, 1986, the Secretary of Labor
filed a Proposal for Assessment of Civil Penalty seeking a $578
penalty. Upright did not file an answer to the penalty proposal.

On November 13, 1986, Judge Merlin issued an Order to Show
Cause directing Upright to file an answer to the penalty proposal
within 30 days or be placed in default. Upright did not respond
within the 30 days, and on January 16, 1987, the Secretary filed a
Motion for Summary Decision. On January 22, 1987, the Commission's
Docket Office received Upright's response to the show cause order.
Due to circumstances created by a local snow emergency, Upright's
answer was not routed internally to the judge's attention until the
day after his default order was issued on January 26, 1987.

The judge's jurisdiction in this matter terminated when his
default order was issued on January 26, 1987. 29 C.F.R. § 2700.65(c).
Under the unusual circumstances presented, we regard Upright's
response to the show cause order as constituting, in effect, a timely
request for review of the judge's default order. Cf. Mohave Concrete
& Materials, Inc., 8 FMSHRC 1646 (November 1986).

We recognize that Upright's response/answer was filed beyond

the time limit set by the judge in his show cause order, and Upright
has not provided any explanation for its late filing. Nevertheless,
in mitigation, we assign weight to the fact that Upright filed a
response before the default order was issued. Cf. Sigler Mining Co.,
3 FMSHRC 30 (January 1981) (attempt to comply at least partially with
a judge's order may be a mitigating factor in default situations).
Inasmuch as Upright has not explained its late filing, we are not
prepared to rule summarily. In fairness, however, we conclude that
Upright should be afforded the opportunity to explain its late filing
to the judge, who shall determine whether relief from default is
warranted. Cf. Kelley Trucking Co., 8 FMSHRC 1867, 1869 (December
1986).

For the foregoing reasons, the judge's default order is
vacated and the matter is remanded for proceedings consistent
with this order. Upright is reminded to serve the opposing party
with copies of all its correspondence and other filings in this
matter. 29 C.F.R. § 2700.7.

               Ford B. Ford, Chairman


               Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner


               James A. Lastowka, Commissioner


               L. Clair Nelson, Commissioner

Distribution

Doug Feuchtenberger, President
Upright Mining, Inc.
P.O. Box 70
Drift, Kentucky 41619

G. Elaine Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
280 U.S. Courthouse
801 Broadway
Nashville, Tennessee 37203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006