Secretary of Labor v. Harry C. Crooker & Sons, Inc. (Commission decision, December 30, 2014)

Plain-English summary

The Chief Administrative Law Judge entered a default after the record appeared to show that Harry C. Crooker & Sons had not answered an order to show cause. Crooker later sought reopening and asserted that it had mailed a timely answer to both the Labor Department and the Commission. The Secretary confirmed that the answer was sent on September 12, 2012, before the 30-day deadline. The Commission held that Crooker was never in default, treated the default order as a nullity, found the reopening motion moot, and remanded the civil-penalty case for further proceedings.

Decision snapshot

• Proceeding: Civil-penalty default and motion to reopen
• Outcome: The default order was treated as a nullity and the case was remanded because the operator had timely answered.
• Key point: A default cannot stand when the operator complied with the show-cause deadline, even if the timely response was not reflected in the record when default was entered.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA)

v.

HARRY C. CROOKER & SONS, INC.

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Docket No.

A.C. No.

YORK 2012-123-M

17-00576-282499

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On July 31, 2013, the Commission received from Harry C. Crooker & Sons, Inc., (“Crooker”) a revised motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On August 23, 2012, the Chief Administrative Law Judge issued an Order to Show Cause in response to Crooker’s failure to answer the Secretary of Labor’s April 2, 2012 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on September 24, 2012, when it appeared that the operator had not filed an answer within 30 days.

Crooker asserts that it had sent a timely answer to the Order to Show Cause to the Department of Labor and the Commission. The Secretary does not oppose the request to reopen and confirms that Crooker sent its answer on September 12, 2012.

Having reviewed
Crooker’s request and the Secretary’s response, we conclude that the operator was not in default under the terms of the Order to Show Cause as it timely complied with the Order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot, and

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.

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner