Valle Construction, LLC

Plain-English summary

Valle Construction failed to answer a penalty petition and a judge’s show-cause order, leading to a default order assessing $1,533 in penalties. The company later wrote to the Commission that it had closed its cinder pit and believed it had been excused from paying the penalties. The Commission treated the letter as a timely petition for discretionary review, vacated the default order, and remanded the matter to the judge to determine whether relief from default was warranted.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The default order was vacated, and the matter was remanded for a determination on relief from default.
• Key point: The Commission may treat an informal letter as a timely petition for discretionary review when it challenges a judge’s default order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

                                    January 12, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 99-368-M
: A.C. No. 02-02806-05501
VALLE CONSTRUCTION, LLC :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, 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. (1994) (“Mine Act”). On December 9, 1999, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Valle Construction, LLC (“Valle”) for
failing to answer the petition for assessment of penalties filed by the Secretary of Labor on
September 9, 1999, or the judge’s Order to Respondent to Show Cause issued on October 25,
1999. The judge assessed civil penalties in the sum of $1,533, proposed by the Secretary.

    On December 27, 1999, the Commission received a letter from Valle asserting it closed

its cinder pit on October 15, 1999, and removed all of its equipment, and that it received
correspondence indicating that it was excused from paying the civil penalties. Letter from
Norman Gobeil, Administrator. Valle requests an explanation for the default order directing it to
pay the penalties. Id.

    The judge’s jurisdiction in this matter terminated when his decision was issued on

December 9, 1999. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s
procedural rules, relief from a judge’s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Valle’s letter to be a timely filed petition for discretionary review, which
we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (Sept. 1988).

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Page 2

    On the basis of the present record, we are unable to evaluate the merits of Valle’s

position. In the interest of justice, we vacate the default order and remand this matter to the
judge, who shall determine whether relief from default is warranted. See General Road Trucking
Corp., 17 FMSHRC 2165, 2166 (Dec. 1995) (deeming letter as timely filed petition for
discretionary review, vacating default, and remanding to judge where pro se operator confused
about Commission’s procedural rules); Amber Coal Co., 11 FMSHRC 131, 132-33 (Feb. 1989)
(same).

                                       Mary Lu Jordan, Chairman




                                       Marc Lincoln Marks, Commissioner




                                       James C. Riley, Commissioner




                                       Theodore F. Verheggen, Commissioner




                                       Robert H. Beatty, Jr., Commissioner



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Page 3

Distribution

Normand Gobeil, Administrator
Valle Construction LLC
HCR 34, Box B
Valle, AZ 86046

Alan Raznick, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, CA 94105

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

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

                                22 FMSHRC 11