George Reed, Inc. (Commission decision, January 20, 2012)

Plain-English summary

George Reed did not initially answer the Secretary's penalty petition, prompting a show-cause order that would become a default after 30 days. The company produced a certified-mail receipt showing that the Commission's Docket Office received its answer on time. The Secretary did not oppose reopening, although the original penalty petition had been returned unclaimed from the address of record. The Commission held that Reed was not in default because it timely complied with the show-cause order and remanded the penalty case for further proceedings.

Decision snapshot

• Governing authority: Federal Mine Safety and Health Act of 1977
• Outcome: The Commission found no default and remanded the penalty case to the Chief Administrative Law Judge.
• Key point: A timely answer to a show-cause order prevents the conditional order from becoming a default.

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

January 20, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

GEORGE REED, INC. 

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Docket No. WEST 2010-444-M

A.C. No. 04-04932-204359

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 September 21, 2011, the Commission received from George Reed, Inc. (“Reed”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On March 21, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its terms became an Order of Default if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Reed’s failure to answer the Secretary’s February 19, 2010 Petition for Assessment of Civil Penalty.

Reed asserts that it filed a timely response to the Show Cause Order, and provides a certified mail receipt signed by the Docket Office on April 22, 2011. The Secretary does not oppose the request to reopen, but notes that the penalty petition was mailed to the address of record but returned unclaimed.

Having reviewed Reed’s request and the Secretary’s response, in the interest of justice, we conclude that Reed was not in default under the terms of the Show Cause Order, as it timely complied with the Order. 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

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Gregory Reed, General Mngr.

George Reed Inc.

P.O. Box 4760

Modesto, CA 95352

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

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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