Pocahontas Construction Company (Commission decision, May 18, 1981)

Plain-English summary

The Secretary sought $122 in penalties for three alleged violations, but Pocahontas Construction Company did not answer the penalty petition. An administrative law judge entered a default order after the company did not respond to an order to show cause. Pocahontas said it never received that order, and the record contained no proof of service. The Commission vacated the default because service was disputed and sent the case back for further proceedings. It did not decide whether the show-cause order had actually been served.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2)(A)(ii)(IV); Commission Rules 2700.28 and 2700.63(a)
• Outcome: The $122 default assessment was vacated; the case was remanded.
• Key point: A default cannot stand without resolving a serious dispute about whether the party received the show-cause order.

Full text (FMSHRC public release)

CCASE:
MSHA V. POCAHONTAS CONSTRUCTION
DDATE:
19810518
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. May 18, 1981 SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
Petitioner )
Docket No. WEVA 81-109-M

v.

POCAHONTAS CONSTRUCTION COMPANY
Respondent

DIRECTION FOR REVIEW AND ORDER
The administrative law judge's Order of Default issued on April 8, 1981, is directed for review. 30 U.S.C. $ 823(d)(2)(A)(ii)(IV). The issue is whether, under the circumstances presented, the judge's finding that Respondent failed to respond to a Show Cause Order and waived its right to a hearing is appropriate. On December 12, 1980, the Secretary of Labor filed a Petition for Assessment of Civil Penalty against Pocahontas Construction Company, seeking penalties totaling $122.00 for three alleged violations of the Act. No answer was filed. On March 4, 1981, the chief administrative law judge issued an order to Pocahontas to show cause, within 15 days, why it should not be deemed to have waived its right to a hearing and why the proposed penalties should not be entered as a final order of the Commission and collection procedures initiated. The record does not disclose any proof that service of this Order was actually made on Pocahontas. On April 8, 1981, the judge issued an Order of Default finding Pocahontas failed to respond to the Show Cause Order issued March 4, 1981, holding Pocahontas in default, assessing the proposed penalties of $122.00 as the final order of the Commission and ordering payment within 30 days. On April 20, 1981, Pocahontas filed its Motion to Set Aside Order of Default alleging, in part, that it had no knowledge of the March 4, 1981 Order to Show Cause, that it had been denied due process and that it be allowed a hearing. Pocahontas' motion is accepted as a timely petition for discretionary review.
~1185
Although Respondent failed to file an answer to the Secretary's Petition for Assessment of Civil Penalty as provided by Commission Rule 2700.28, before the entry of any Order of Default, Commission Rule 2700.63(a) requires "an order to show cause shall be directed to the party." A Show Cause Order does not serve its intended purpose if not received by the party required to respond. Here, Respondent alleges it did not receive the show cause order of March 4, 1981, and there is no proof in the record to the contrary. Under these circumstances a serious question of service arises and we are not prepared to summarily rule whether service in fact was made. In view of the fact that entry of a default judgment is harsh and a dispute exists as to receipt of the order to show cause precipitating the judgment, we are of the opinion that the matter should be remanded. Accordingly, the judge's Order of Default is vacated and the case is remanded for further proceedings.