Secretary of Labor v. A & G Coal Corporation (ALJ decision, August 30, 2017)

Plain-English summary

A & G Coal failed to join a scheduled conference call concerning five stayed penalty dockets and did not respond to an order to show cause by the stated deadline, although the court received confirmation that the order had been signed for. Judge David P. Simonton lifted the stay, entered default, dismissed the company's contests and hearing requests, and ordered payment of the originally assessed $321,753. The Commission later granted review because A & G disputed receiving the show-cause order and remanded for findings on whether relief from default was warranted. A later ALJ order reserved the default question for a hearing with the citation merits.

Decision snapshot

• Cited authority: Commission Rule 66 governing default after failure to comply with a judge's orders
• Outcome: Default was entered and $321,753 was ordered paid, but the Commission later remanded the disputed default for further proceedings.
• Subsequent review: See va-2014-243-commission and va-2014-243-alj.
• Key point: This default did not remain final because the record later raised a material dispute over service of the show-cause order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

August 30, 2017

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),

Petitioner,

v.

A&G COAL CORPORATION,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. VA 2014-243

A.C. No. 44-04534-346270

Docket No. VA 2014-244

A.C. No. 44-04534-346286

Docket No. VA 2014-364

A.C. No. 44-04534-352768

Docket No. VA 2014-365

A.C. No. 44-04534-353549

Docket No VA 2014-383

A.C. No. 44-04534-353996

Mine: Prep Plant #2

ORDER
LIFTING STAY

ORDER
OF DEFAULT

ORDER
TO PAY

These
dockets are before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. At issue are five dockets with a total assessed penalty of $321,753.00. These dockets were consolidated and stayed pursuant to an April 6, 2015 Order of the Court.

On August
7, 2017, the court scheduled a conference call with the parties for Monday, August 14, 2017 at 2:00pm MT to discuss lifting the stay and scheduling a hearing date. August 7, 2017 Court Email. The email allowed Respondent’s representative one week to contact the court if he was unavailable and needed to reschedule the call. Respondent’s representative made no such request. On August 14, 2017, Respondent’s representative failed to appear for the 2:00pm conference call. The parties held the call open until 2:24pm MT, during which the court and the Secretary attempted to contact Respondent’s representative via email and phone, respectively. Neither party received a response.

On
August 16, 2017, the court issued a formal written Order to Show Cause ordering the Respondent to file a response by August 28, 2017 explaining why it failed to maintain contact with the court and why a default order in favor of the Secretary should not be entered pursuant to Commission Rule 2700.66. The court received confirmation that the show cause order was processed and signed for on August 21, 2017. However, Respondent failed to file a response as of August 30, 2017.

Under
Commission Rules, a Judge may issue an order of default or dismissal after issuing an order to show cause for a party’s failure to comply with a Judge’s orders. 29 C.F.R. § 2700.66.

Accordingly, I find Respondent to be IN DEFAULT . The stay is hereby LIFTED and Respondent’s notice of contest and request for hearing are DISMISSED . Respondent is hereby ORDERED to pay a total penalty of $321,753.00 as originally assessed within thirty (30) days of the date of this Order. [1]

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (U.S. First Class Mail)

Karen M. Barefield, Attorney, U.S. Department of
Labor, 211 7 th Avenue North, Suite 420, Nashville, TN 37219

Hagel Campbell, Conference & Litigation
Representative, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273

Robert S. Wilson, Regional
Counsel, U.S. Department of Labor, 201 12 th Street South, Arlington, VA 22202

Patrick Graham, Southern
Coal Corporation, 302 South Jefferson Street, Roanoke, VA 24011

[1] Checks or money orders should be sent to: Mine Safety
& Health Administration, U.S. Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.