Secretary of Labor v. Sierra Rock & Dirt, Inc. (Commission decision, December 30, 2014)

Plain-English summary

The Secretary's penalty case against Sierra Rock & Dirt was split into two dockets, WEST 2014-41-M and WEST 2014-42-M. Sierra timely answered all citations in both cases, but the answer displayed only the first docket number. Because the second docket appeared unanswered, a show-cause order later became a default order. The Secretary confirmed the timely combined answer and did not oppose relief. The Commission held that Sierra was never in default, treated the default order as a nullity, found the reopening motion moot, and remanded the case for further proceedings.

Decision snapshot

• Proceeding: Civil-penalty default and motion to reopen
• Outcome: The default order was treated as a nullity and the case was remanded because a timely answer covered both split dockets.
• Key point: A timely answer that identifies all contested citations can prevent default in a companion docket even when the response lists only one of the two docket numbers.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA)

v.                                

SIERRA ROCK & DIRT, INC.

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Docket No.

A.C. No.

WEST 2014-42-M

24-02115-331596-02

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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 June 3, 2014, the Commission received from Sierra Rock & Dirt, Inc., (“Sierra”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On February 25, 2014, the Chief Administrative Law Judge issued an Order to Show Cause in response to Sierra’s perceived failure to answer the Secretary of Labor’s November 22, 2013 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on March 28, 2014, when it appeared that the operator had not filed an answer within 30 days.

Sierra asserts that it had filed a timely answer to the Petition for Assessment of Civil Penalty. The Secretary does not oppose the request to reopen and notes that this case was split into two dockets, WEST 2014-41-M and WEST 2014-42-M. The Secretary confirms that the operator sent a timely answer that included all citations for both dockets, but that the answer was labeled with only one docket number, WEST 2014-41-M.

Having reviewed
Sierra’s request and the Secretary’s response, we conclude that the operator was not in default under the terms of the Order to Show Cause as it filed a timely response to the penalty petition. See Eagle Creek Mining, LLC, 35 FMSHRC 781, 782 (Apr. 2013). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot, and 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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner