Secretary of Labor v. American Sand Co. LLC (Commission decision, October 20, 2020)

Plain-English summary

American Sand appeared to default after it did not answer an ALJ show-cause order. The operator said it never received the order because the service address contained a typographical error, and the record had no proof of delivery. The Commission found that the unserved order did not create a final default. It denied the reopening motion as moot, left the case open, and remanded it for further proceedings.

Decision snapshot

• Cited authority: None
• Outcome: The reopening motion was denied as moot, and the still-open case was remanded.
• Key point: A show-cause order sent to a mistyped address and never served could not create a final default.

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.

AMERICAN SAND CO. LLC

:

:

:

:

:

:

:

Docket No. SE 2019-0207

A.C. No. 40-00798-494965

BEFORE:  Rajkovich, Chairman; Althen and Traynor, 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 December 20, 2019, the Commission received from American Sand Co. LLC (“American Sand”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On October 24, 2019,
the Chief Administrative Law Judge issued an Order to Show Cause in response to American Sand’s perceived failure to answer the Secretary of Labor’s August 23, 2019, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on December 16, 2019, when it appeared that the operator had not filed an answer within 20 days.

American Sand
asserts that it did not receive the Order to Show Cause because it was sent to the wrong address. The Secretary does not oppose the request to reopen. His response recites two addresses which might have been proper places of service for the operator’s representative, but neither of those is the incorrect address shown on the Order to Show Cause as the service address for the order. [1] There is no proof of delivery in the record.

Having reviewed American Sand’s request, the Secretary’s response, and the record in this case, we find that the Order to Show Cause did not result in a final order of default because it was never served on the operator. Thus, the operator has not been properly found to be in default. Accordingly, the operator’s motion is denied as moot. This case remains open , and 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/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution (by e-mail):

Steven
Chambers

Safety
& Compliance Coordinator

American
Sand Company LLC

[email protected]

Emily Toler Scott , Esq.

Office of the Solicitor

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

[email protected]

[1] The incorrect address appears to be the result of a typographical error.