Jaunt, Inc. (Commission decision, September 18, 2012)

Plain-English summary

Jaunt did not answer a civil-penalty petition, and a show-cause order was treated as becoming a default order after thirty days. The operator later said it did not understand that another answer was required after contesting the proposed assessment. The record also showed that Jaunt was omitted from the show-cause order's distribution list and the order was never mailed to it. The Commission held that the default never became final, remanded the case, and gave Jaunt thirty days to answer the show-cause order.

Decision snapshot

• Cited authority: 30 U.S.C. § 801 et seq.
• Outcome: The nonfinal default was set aside and the penalty case was remanded for further proceedings.
• Key point: A show-cause order that was never served on the operator cannot mature into a final default order.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                       

September 18, 2012

SECRETARY OF LABOR,                                

MINE SAFETY AND HEALTH                       

ADMINISTRATION (MSHA)

v.

JAUNT, INC.

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Docket No. WEVA 2010-1284-M

A.C. No. 46-08262-221287

BEFORE: Jordan, Chairman; Young and Nakamura, 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. (2006) (“Mine Act”). On December 9, 2011, the Commission received from Jaunt, Inc. (“Jaunt”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On March 18, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Jaunt’s failure to answer the Secretary’s July 23, 2010 Petition for Assessment of Civil Penalty. The Commission did not receive Jaunt’s answer within 30 days, so the default order became effective on April 18, 2011.

Jaunt asserts that it was not aware it had to answer the penalty petition after it contested the proposed assessment. The Secretary does not oppose the request to reopen and notes that the operator is not listed on the show cause order distribution list.

Having reviewed Jaunt’s request and the Secretary’s response, in the interest of justice, we conclude that the Default Order has not become a final order of the Commission because the Order to Show Cause was never mailed to Jaunt. Accordingly, 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. Jaunt shall file an Answer to the Show Cause Order within 30 days of the date of this order.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jack Mullins, President

Jaunt Inc.,

P.O. Box 626

Chapmanville, WV 25508

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021