Industrial Minerals, Inc. (Commission decision, September 26, 2011)

Plain-English summary

An ALJ entered default after concluding that Industrial Minerals failed to answer a show-cause order. The operator produced certified-mail receipts showing that the Commission's docket office timely received both its response to the show-cause order and its later response to the default order. The Secretary did not oppose relief. The Commission held that the operator was never in default, found that the default order was issued in error, and remanded for further proceedings.

Decision snapshot

• Cited standard: None
• Outcome: The erroneous default was set aside and the case was remanded.
• Key point: Certified delivery showing timely compliance with a show-cause order defeats a later default based on supposed nonresponse.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

INDUSTRIAL MINERALS, INC.

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Docket No. SE 2008-671-M

A.C. No. 38-00388-147374

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On February 24, 2011, the Commission received from Industrial Minerals, Inc. (“Industrial”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On August 3, 2010, Chief Judge Lesnick issued an Order to Show Cause in response to Industrial’s request for a hearing and failure to answer the Secretary’s May 30, 2008 Petition for Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it would be in default. On December 2, 2010, Judge Lesnick issued an Order of Default for failing to comply with his Show Cause Order.

Industrial asserts it filed a timely response to the Show Cause Order and provides a certified mail receipt signed by the Commission’s Docket Office on August 23, 2010. Moreover, Industrial states it also responded to the Default Order and provides another certified mail receipt signed for by the Docket Office on December 9, 2010. The Secretary does not oppose the request to reopen.

Having reviewed Industrial’s request and the Secretary’s response, in the interest of justice, we conclude that Industrial was not in default under the terms of the Show Cause Order, as it timely complied with the Order. Hence, the Order of Default was issued in error. Accordingly, this case 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/______

Mary Lu Jordan, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

Lewis G. Wilson

Industrial Minerals, Inc.

141 Mineral Drive

Blacksburg, SC 29702

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021