. J & J SAND AND GRAVEL January 19, 1999 CENT 98-196-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET, N.W., 6TH FLOOR WASHINGTON, D.C. 20006-3868 January 19, 1999 SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. CENT 98-196-M Petitioner : A. C. No. 03-01735-05512 : v. : J & J SAND AND GRAVEL, : J & J Sand & Gravel Respondent : ORDER VACATING DEFAULT ORDER OF ASSIGNMENT Before: Judge Merlin On December 14, 1998, an order of default was issued in the above-captioned case directing the operator to pay the proposed penalties immediately because it failed to file an answer to the Secretary's penalty petition. On December 29, 1998, the Solicitor filed a notice of response by the respondent advising that the operator had filed an answer with his office on August 12, 1998. The Solicitor enclosed the answer he received from the operator which is dated August 5, 1998, and is addressed to the Commission. The Solicitor maintains that the default in this case is appropriate because the operator failed to respond to the show cause order issued on October 19, 1998. Under Commission precedent, a problem in communication or with the mail may justify relief from default. Con-Ag, Inc., 9 FMSHRC 989, 990 (June 1987); United Rock Products Corp., 14 FMSHRC 79 (January 1992); Lynx Coal Company, 15 FMSHRC 979 (June 1993); AMI Construction, 16 FMSHRC 670 (April 1994); Sandy Jones Construction, 16 FMSHRC 2375 (December 1994). It appears that such a problem occurred in this case. Furthermore, the operator's August 5 answer was a timely response to the penalty petition which was filed on August 3, 1998. Consequently, the October 19 show cause order should not have been issued in the first place. I reject the Solicitor's argument that default is warranted because the operator did not respond to the show cause order. Failure to respond to an order that was erroneously issued is not grounds for a default. Indeed, if the Solicitor had timely advised the Commission of the operator's answer, no show cause would have been issued. Therefore, I find that relief from the default is warranted. In light of the foregoing, the December 14 order of default issued in this case is hereby VACATED. This case is hereby assigned to Administrative Law Judge David Barbour. All future communications regarding this case should be addressed to Judge Barbour at the following address: Federal Mine Safety and Health Review Commission Office of Administrative Law Judges Two Skyline Place, Suite 1000 5203 Leesburg Pike Falls Church, VA 22041 Telephone No. 703-756-5232 Telephone No. 703-756-6201 (Fax) Paul Merlin Chief Administrative Law Judge Distribution: (Certified Mail) Brian L. Pudenz, Esq., Office of the Solicitor, U. S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 Mr. Bill Warford, J & J Sand and Gravel, 15902 Highway 70, Benton, AZ 72015 /gl FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006-3868 Brian L. Pudenz, Esq., Office of the Solicitor U. S. Department of Labor 525 Griffin Street, Suite 501 Dallas, TX 75202 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006-3868 Mr. Bill Warford J & J Sand and Gravel 15902 Highway 70 Benton, AZ 72015