Mohave Concrete and Materials Incorporated

Plain-English summary

Mohave Concrete and Materials failed to respond to a judge's show-cause order, and the Chief Administrative Law Judge entered a default order assessing $1,231 in civil penalties. Mohave later asked the judge to vacate the default and reopen the case, attributing the missed response to a former bookkeeper's mistake or neglect. The Commission treated the letter as a timely petition for discretionary review. It vacated the default order and remanded for further proceedings concerning the adequacy of Mohave's explanation or the underlying merits.

Decision snapshot

• Governing provisions: 30 U.S.C. § 801; 29 C.F.R. §§ 2700.5(b) and 2700.70(a)
• Outcome: The default order was vacated and the proceeding was remanded.
• Key point: Default is a harsh remedy, and a sufficient showing of good cause may permit a case to proceed on the merits.

Full text (FMSHRC public release)

CCASE:
MSHA V. MOHAVE CONCRETE & MATERIALS
DDATE:
19861118
TTEXT:

             FMSHRC-WDC
            November 18, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 v.               Docket No. WEST 86-14-M

MOHAVE CONCRETE AND MATERIALS
INCORPORATED

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

         ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982). On
October 9, 1986, Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent, Mohave Concrete and Materials,
Inc. ("Mohave") in default, for its failure to respond to the judge's
August 20, 1986 Show:Cause Order, and assessing civil penalties
totalling $1,231. Thereafter, on October 22, 1986 Mohave sent a
letter to the judge requesting the judge to vacate the Order of
Default and to reopen the case. We consider Mohave's letter to the
judge to be a timely Petition for Discretionary Review. 29 C.F.R.
$ 2700.5(b) and 2700.70(a).

Default is a harsh remedy, and if a defaulting party can make
a showing of adequate or good cause. for a failure to respond to an
order, the failure may be excused and proceedings on the merits
permitted. M.M. Sundt Constr. Co., 8 FMSHRC 1269 (September 1986).
Mohave asserts that its failure to respond to the August 20, 1986
Order to Show Cause is attrib"table to the mistake or neglect of a
former bookkeeper.

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Accordingly, we vacate the Order of Default and remand to the
judge for such further proceedings as he deems appropriate as to
either the sufficiency of the cause asserted or the underlying merits
of the case. 1/

              Ford B. Ford, Chairman


              Richard V. Backley, Commissioner


              Joyce A. Doyle, Commissioner


              James A. Lastowka, Commissioner

1/ Commissioner L. Clair Nelson believes that Mohave has not shown
good cause for failing to comply with the Chief Administrative Law
Judge's Show Cause Order of August 20, 1986, and in the absence of
any argument concerning due process in this proceeding he would
affirm the judge's order of default.

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~1648
Distribution

Mr. Quinto Polidori, President
Mohave Concrete & Materials, Inc.
450 Highway 85 North
Lake Havasu City, Arizona 86403

Marshall P. Salzman, Esq.
Office of the Solicitor
U.S. Department of Labor
P.0. Box 36017
San Francisco, California 94102

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006