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October 30, 2017























Docket No. VA 2014-243

A.C. No. 44-04534-346270


Docket No. VA 2014-244

A.C. No. 44-04534-346286


Docket No. VA 2014-364

A.C. No. 44-04534-352768


Docket No. VA 2014-365

A.C. No. 44-04534-353549


Docket No. VA 2014-383

A.C. No. 44-04534-353996


Mine: Prep Plant #2




            These consolidated cases are before me on remand from the Commission. See A&G Coal Corp., 39 FMSHRC __, slip op. No. VA 2014-243 et al. (Oct. 2017). On August 16, 2017, I issued an Order to Show Cause to A&G Coal Corporation (“A&G” or “Respondent”) because its representative failed to appear for a scheduled conference call to discuss lifting a stay and setting these dockets for hearing. Unpublished Order dated August 16, 2017. The Order gave A&G until August 28, 2017 to show good cause. A&G did not respond to the order and as a result I issued an Order of Default on August 30, 2017. On September 29, A&G filed a petition for discretionary review requesting relief from the default order, in which it argued it did not receive the show cause order and only discovered its issuance when A&G received the order of default. See A&G Coal Corporation Petition for Discretionary Review (“PDR”) at 3-4.


            On review, the Commission noted a lack of clarity regarding the communication issues in the record and remanded the case “to determine whether relief from the default is warranted and for further proceedings as appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.” 39 FMSHRC __, slip op. at 3 (Oct. 2017).


            Default is a harsh remedy, and relief may be granted and the case reopened on the basis of mistake, inadvertence, excusable neglect, or another reason justifying relief. See 29 C.F.R. § 2700.1(b); Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995); Jim Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993). Issuance of such an order by the court is never done lightly

without much thought and deliberation and certainly never with the intent of abusing discretion. In fact, this is the first time in my five year tenure with the agency and fifteen year career as a judge that I recall ever finding it necessary to issue a default order. I do, however, agree that certain aspects of A&G’s communicative deficiencies in these cases remain unclear and will take this opportunity to address some of the ambiguities within the record noted by the Commission. In addition, I will set the dockets for a hearing on the merits as well as on the issue of default, and order A&G to remedy its communicative deficiencies as specified below.


            I first address the perceived ambiguity regarding who represented A&G throughout the procedural history of these matters. The cases had been stayed since 2015 pending a 110(c) investigation, and until early 2017, Mr. James Bowman served as A&G’s representative. On January 27, 2017, Mr. Bowman filed a notice of withdrawal and substitution of counsel that identified Mr. Billy Shelton as the Respondent’s new representative and provided his contact information. Notice of Withdrawal and Substitution of Counsel, filed January 27, 2017. Mr. Shelton did not file a formal entry of appearance as required by my prehearing order and 29 C.F.R. § 2700.3(c). See 39 FMSHRC __, slip op. at 5 (Althen, Comm’r, concurring).


            The court was aware of the withdrawal notice at the time of its filing and initially assumed that Mr. Shelton was representing A&G in these matters. The court copied Mr. Shelton along with representatives for the Solicitor on at least one email requesting a status update on the cases. See Court Email to A&G and Solicitor, sent March 20, 2017. On March 20, 2017, the representatives for the Solicitor notified the court that they had instead been working with Mr. Patrick Graham, who, according to the email, was currently representing A&G in these matters. Solicitor’s Email to A&G and Court, dated March 24, 2017. In step with their explanation, the Solicitor copied Mr. Graham’s email address to the correspondence instead of Mr. Shelton’s. Id. Mr. Graham did not object or redirect the court to Mr. Shelton at that time, and Mr. Shelton never responded to the court’s initial email. Given that no A&G representative had filed a formal entry of appearance or responded to the status emails, the court believed, consistent with the Solicitor’s email, that Mr. Graham was now acting as A&G’s representative at that time.


            What followed were several months of intermittent emails regarding the status of these dockets and the accompanying 110(c) investigation. Correspondences on March 27, June 30, and August 4 were all sent to the Solicitor and Graham. Mr. Graham did not respond to those emails, nor did either party indicate that Mr. Shelton was involved in the cases. On August 7, the Solicitor requested a conference call with the court and Graham to discuss whether the stay should be lifted and a hearing date should be selected. Solicitor’s Email to Court and A&G, dated August 7. The court’s clerk scheduled the conference call for August 14, 2017 and explicitly instructed Mr. Graham to contact the court within the week prior to the call if he wished to reschedule. Court Email to A&G and Solicitor, dated Aug. 7, 2017. Mr. Graham did not respond, and so the court concluded that the appointment time was acceptable to the parties.


            The court decided that a show cause order was necessary when A&G did not appear for the August 14 conference call. Mr. Graham later stated that he was underground at the time of the conference call, which accounts for why he did not answer the attempts by the court and Solicitor to contact him while on the line for the conference call. See Aff. of Patrick Graham at 2. Mr. Graham admitted that he was aware of the scheduled conference call and failed to appear or to notify Mr. Shelton to attend. Id. Graham therefore had the opportunity to contact the court on a number of occasions. He could have notified the court prior to the conference call that he would be unable to appear and requested to reschedule. He could have directed the court to contact Mr. Shelton at this point or any point over the past three months during which he was copied on the status emails, or he could have contacted Mr. Shelton himself to ask him to appear for the call or otherwise contact the court. He also could have contacted the court after missing the call to explain the situation. He did none of these things.


            In the court’s view, A&G had multiple opportunities to adequately maintain communications with the court and continually failed to do so. Pursuant to the court’s prehearing order, it is the parties’ responsibility to maintain communications with the court, including properly filing entries of appearances, ensuring the court has the proper contact information and following up on any missed calls or emails. The failure to answer emails or follow up in any way on the missed conference call thus prompted the court to issue the Order to Show Cause.[1]


            I next address the service of the Order to Show Cause. A&G asserted in its Petition for Discretionary Review that Graham was unaware of the show cause order until the response deadline had lapsed and he received the default order. See PDR at 2. Mr. Graham’s unawareness remains unexplained.


            The Court maintains that it used the proper mailing address on record to serve the show cause order to A&G. Graham stated that A&G has an office in Roanoke, and the address used, 302 South Jefferson Street, Roanoke, VA 24011, is listed on the Virginia Secretary of State’s website as A&G’s principal office. See Aff. of Patrick Graham at 3; 2017 Commonwealth of Virginia State Corporation Commission, Business Entity Details, https://sccefile.scc.virginia.gov/Business/0364069 (last visited Oct. 20, 2017).  Graham also stated that he received the default order at that same address in early September. Aff. of Patrick Graham at 2. The proof of service shows that both Orders were signed for by Ms. Leslie Wells. See Proof of Service – OSC, dated August 16, 2017; Proof of Service – Default Order, dated August 30, 2017. [2]


            A&G has not been able to explain why it only received the default Order when both documents were served to the same address and signed for by the same employee. Regardless of the reasons, the discrepancy stresses the importance for the operator to ensure it will timely receive and respond to all correspondence from the court. The court orders the Respondent to address these communicative deficiencies as specified below, whether they represent a systemic problem within the A&G office that resulted in misplacement of the show cause order, or indicate that the provided address is no longer appropriate for correspondence from the court.


            It is lamentable that a simple email or phone call from the operator could have prevented this sequence of events. Nonetheless, I agree with the Commission that in all circumstances default is a harsh remedy and that the record is not yet entirely clear as to A&G’s repeated failures to communicate with the court and receive the show cause order. I therefore reserve the issue of default to be addressed at hearing, which will also encompass a hearing on the merits of the citations at issue, and will be scheduled per a separate hearing order. At the hearing, the court expects A&G to fully address for the record good cause explanations for (1) its failure to enter an appearance or in any way communicate with the court after it’s representative, Mr. Bowman, withdrew from the proceedings, (2) its failure to participate in the conference call and follow up with the court, and (3) the reasons behind its failure to receive and respond to the show cause order. I expect Mr. Graham, Ms. Leslie Wells, and any other witness that A&G deems necessary to testify under oath to these issues. If a subpoena for Mr. Graham or Ms. Wells is required, A&G must notify the court no later than November 30, 2017.


            Accordingly, legal counsel for A&G in these matters, be it Mr. Shelton or another, is ORDERED to file a formal Entry of Appearance within 5 days of the issuance of this Order as required by 29 C.F.R. § 2700.3(c) and my prehearing order. Furthermore, A&G or its legal counsel is ORDERED to provide written confirmation of A&G’s principal mailing address and whether there is an additional address at which A&G will timely and efficiently receive the court’s Orders.






                                                                                                /s/ David P. Simonton

                                                                                                David P. Simonton

                                                                                                Administrative Law Judge




Distribution: (U.S. First Class Mail)


Karen M. Barefield, Attorney, U.S. Department of Labor, 211 7th Avenue North, Suite 420, Nashville, TN 37219


Hagel Campbell, Conference & Litigation Representative, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273


Robert S. Wilson, Regional Counsel, U.S. Department of Labor, 201 12th Street South, Arlington, VA 22202


Patrick Graham, Southern Coal Corporation, 302 South Jefferson Street, Roanoke, VA 24011


Billy Shelton, Attorney, Shelton, Branham & Halbert PLLC, 2452 Sir Barton Way, Suite 101, Lexington, KY 40509


[1] The Commission’s concurrence suggests that the court could have lifted the stay and set the cases for hearing as a lesser alternative sanction. See 39 FMSHRC __, slip op. at 6 (Althen, Comm’r, concurring). However, the court did not consider that option a sanction in that lifting the stay and setting the dockets for hearing were in fact, the objectives of the conference call nor, in my view, would it have adequately addressed A&G’s repeated failures to communicate with the court.

[2] The court acknowledges that the show cause order bounced back via email, consistent with Graham’s assertion that he switched email addresses at some point in August. See Aff. of Patrick Graham at 2. As noted above, however, Mr. Graham knew of the conference call and failed to follow up with the court, at which time he could have also informed the court that he was changing email addresses or was unable to access his email. Id.