Sproule Construction Company, Incorporated (ALJ decision, June 10, 1999)

Plain-English summary

Sproule Construction failed to respond to a show-cause order after it mistakenly believed that communications with MSHA had resolved the matter. Judge Paul Merlin found adequate cause for the failure, noting that the operator had appeared without counsel and was unfamiliar with Commission procedures. He vacated the March 15, 1999 default order and assigned the case to Administrative Law Judge Jacqueline Bulluck. The order does not decide the underlying penalty allegations.

Decision snapshot

• Governing authorities: Commission procedure; Coal Preparation Servs., Inc., 17 FMSHRC 1529 (Sept. 1995)
• Outcome: The default order was vacated and the case was assigned to Judge Jacqueline Bulluck.
• Key point: The Commission may relieve a party from default when it shows adequate cause for failing to respond, but similar procedural excuses may not be accepted later.

Full text (FMSHRC public release)

SPROULE CONSTRUCTION COMPANY, INCORPORATED June 10, 1999 LAKE 99-24-M

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1730 K STREET, N.W., 6TH FLOOR

WASHINGTON, D. C. 20006-3868

June 10, 1999

SECRETARY OF LABOR
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 99-24-M Petitioner : A. C. No. 11-03024-05502 :
v. :
SPROULE CONSTRUCTION : Portable No. 2 COMPANY, INCORPORATED, :
Respondent :

ORDER TO VACATE DEFAULT
ORDER OF ASSIGNMENT

This case is before me pursuant to order of the Commission dated April 26, 1999.

On April 27, 1999, I issued an order directing the parties to file certain information. On May 27, 1999, the Solicitor filed his response to the April 27 order. The Solicitor advises that MSHA received a letter from the operator on December 16, 1999, and that on December 24 MSHA responded. The Solicitor has provided copies of these letters. With respect to the telephone call from the operator on December 15, the Solicitor merely refers to the statement in MSHA's December 24 letter and offers no independent investigation into the occurrence of the phone call.

On May 27, 1999, counsel for the operator filed its response to the April 27 order. Counsel states that the operator's initial understanding of the December 24 correspondence with MSHA was that it only had to send the appropriate forms to establish a new mining operation and that upon execution of the forms, the matter of standing on the original allegations was placed in abeyance. Counsel claims that the operator sent the forms to MSHA's office in Peru, Illinois and confirmed its understanding and submission with a telephone call. Counsel further argues that at the time the operator received the penalty petition, the operator was not familiar with the applicable Commission procedures and failed to appreciate the significance of the Show Cause Order. The operator was under the mistaken belief that it was already involved in the process to settle and resolve the violations in the penalty petition. Finally, Counsel states that he has been engaged in settlement discussions with the Solicitor. he has been engaged in settlement discussions with the Solicitor.

The Commission has observed that default is a harsh remedy and held that, if the defaulting party can make a showing of adequate or good cause for the failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). Here the operator was appearing pro se up until the default order was issued and was not familiar with Commission procedure. In addition, a review of the file shows that the penalty petition was mailed on December 11, 1999. It is apparent that the operator contacted MSHA when it first received the petition and mistakenly believed that it had resolved this matter. It was this erroneous belief that caused the operator to ignore the show cause order. Therefore, I find that the operator has demonstrated adequate cause to warrant relief from the default order. The operator is now familiar with Commission procedure and is on notice that similar excuses will not be accepted in the future.

Counsel for the operator filed an answer to the penalty petition with his March 25, 1999, motion to vacate the default order. Accordingly, this case is ready for assignment

In light of the foregoing, it is ORDERED that the March 15, 1999, default order is hereby VACATED.

It is further ORDERED that this case is assigned to Administrative Law Judge Jacqueline Bulluck.

All future communications regarding this case should be addressed to Judge Bulluck at the following address:

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

Telephone No. (703) 756-6210
Fax No. (703) 756-6201

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)

Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department of Labor, 230 South Dearborn Street, Chicago, IL 60604

Richard Reichstein, Esq., One N. LaSalle Street, Suite 3630, Chicago, IL 60602

/gl

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

Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department of Labor, 230 South Dearborn Street, Chicago, IL 60604

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

W. Christian Schumann, Esq.
Counsel, Appellate Litigation Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard Arlington, VA 22203

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

Richard Reichstein, Esq.
One N. LaSalle Street Suite 3630
Chicago, IL 60602

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

Rafael Alvarez, Esq.,
Office of the Solicitor,
U. S. Department of Labor,
230 South Dearborn Street,
Chicago, IL 60604