Secretary of Labor v. Munsen Paving, LLC (Commission decision, March 28, 2017)

Plain-English summary

Munsen Paving appeared to have missed the deadline to answer a show-cause order, which was then treated as a default order. The operator produced a certified-mail return receipt showing that it mailed its answer one day before the deadline and that delivery was recorded several days later. The Secretary did not oppose reopening. The Commission held that Munsen had timely complied and therefore was never in default. It declared the default order a nullity, treated the reopening motion as moot, and remanded the penalty case for further proceedings.

Decision snapshot

• Cited authority: Commission precedent on timely responses to show-cause orders
• Outcome: The default order was declared a nullity and the case was remanded for further proceedings.
• Key point: A certified-mail record can establish timely compliance even when the answer was not initially reflected in the case docket.

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.

MUNSEN
PAVING, LLC

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:

:

:

:

:

:

Docket
No. WEST 2016-215-M

A.C.
No. 35-003312-398548

BEFORE: Althen, Acting
Chairman; Jordan, Young, and Cohen, 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 September 7, 2016, the Commission received from Munsen Paving, LLC (“Munsen”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
March 8, 2016, the Chief Administrative Law Judge issued an Order to Show Cause in response to Munsen’s failure to answer the Secretary of Labor’s January 14, 2016 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on April 8, 2016, when it appeared that the operator had not filed an answer within 30 days.

Munsen asserts that, on April 7, 2016,
it timely filed an answer to the Order to Show Cause via certified mail. It offers a return receipt to prove that the answer was post-marked on April 7, 2016. Munsen further demonstrates that it received the return receipt with April 13, 2016 stamped on the front of the card. The Secretary does not oppose the request to reopen.

Having reviewed Munsen’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 timely complied with the Order. See Vulcan Construction Materials , 33 FMSHRC 2164 (Sept. 2011). 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/ William I. Althen

William I.
Althen, Acting Chairman

/s/ Mary Lu
Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

Distribution:

Gwendolyn
K. Nightengale, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

1909
K Street, N.W., Suite 1000

Washington,
DC 20006

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450