Doug Connelly Sand & Gravel

Plain-English summary

Doug Connelly Sand & Gravel was found in default after it did not respond to a Commission show cause order, and the ALJ assessed $2,179 in civil penalties. The operator's attorney had prepared an answer and mailed it to the Secretary's counsel instead of filing it with the Commission. The Commission treated the operator's request as a timely petition, vacated the default order, and remanded the case so the operator could present its position to the judge.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 801 et seq.; 29 C.F.R. §§ 2700.65(c), 2700.70(a), 2700.5(b), and 2700.28
• Outcome: The Commission vacated the default order assessing $2,179 and remanded for further proceedings.
• Key point: A party that timely prepares an answer but sends it to the wrong recipient may receive an opportunity to litigate when it promptly seeks relief and shows a possible excuse for the default.

Full text (FMSHRC public release)

CCASE:
MSHA V. DOUG CONNELLY SAND & GRAVEL
DDATE:
19870320
TTEXT:

              FMSHRC-WDC
             MARCH 20, 1987

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

    v.            Docket No. WEST 86-196-M

DOUG CONNELLY SAND & GRAVEL

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

                ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982),
Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default on February 11, 1987, finding Doug Connelly Sand &
Gravel ("Connelly") in default for failure to respond to a show cause
order. The judge assessed civil penalties totalling $2,179. For the
reasons that follow, we vacate the default order and remand the case
for further proceedings.

 On March 3, 1987, Connelly's attorney wrote a letter to

Judge Merlin seeking vacation of the default order on the ground
that he mistakenly had filed Connelly's answer to the Secretary's
penalty proposal with counsel for the Secretary instead of with the
Commission. In support of this assertion, copies of Connelly's
Answer, Affirmative Defense and Counterclaim were attached to the
letter, together with copies of a mailing receipt for certified mail
dated August 7 1986, and a signed receipt for delivery dated August 8,
1986. Connelly's letter was received by the Commission on March 6,
1987.

Page 2

 The judge's jurisdiction over the case terminated when his

decision was issued. 29 C.F.R. § 2700.65(c). We will treat Connelly's
letter requesting relief from the judge's order as a timely petition
for discretionary review because it was received within 30 days of the
judge's decision. 29 C.F.R. § 2700.70(a). The petition is granted.

The record discloses that on May 1 and 2, 1986, an inspector

of the Department of Labor's Mine Safety and Health Administration
("MSHA") issued nine citations to Connelly alleging violations of various safety
regulations. Upon preliminary notification by MSHA of the civil
penalties proposed for these alleged violations, Connelly's owner
filed a "Blue Card" request for a hearing before this independent
Commission. On July 24, 1986, counsel for the Secretary served him
with the Secretary's penalty proposal. As noted, Connelly's attorney
served an answer on the Secretary by certified mail return receipt
requested on August 7, 1986. However, the document was never filed
with the Commission. Under the Commission's rules of procedure, the
party against whom a penalty is sought must file an answer with the
Commission within 30 days after service of the penalty proposal.
29 C.F.R. §§ 2700.5(b) & 28.

Not having entered an appearance, Connelly's attorney never

appeared on the distribution list for relevant Commission documents.
The return receipt for the judge's show cause order indicates that it
was delivered to someone named "Connelly." While Connelly failed to
respond to the judge's show cause order, we recognize that Connelly's
attorney did prepare an answer and serve it on the Secretary in a
timely manner. In light of this fact and counsel's promptness in
bringing the existence of a possible excuse to the attention of the
Commission, we believe that the operator should have the opportunity
to present its position to the judge.

 For the foregoing reasons, the judge's default order is vacated

and the matter is remanded to the judge, who shall determine whether
relief is appropriate. See, e.g., Kelley Trucking Co., 8 FMSHRC 1867,
1869 (December 1986).

               Ford B. Ford, Chairman


               Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner


               James A. Lastowka, Commissioner


               L. Clair Nelson, Commissioner

Page 4

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Distribution

Gary W. Brandstetter, Esq.
Suite 5 Katlin Building
122 Avenue A
Snohomish, Washington 98290

Faye von Wrangel, Esq.
Office of the Solicitor
U.S. Department of Labor
8003 Federal Office Bldg.
Seattle, Washington 98174

Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

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