**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OF THEADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

 
| SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

                        Petitioner

 

and

 

JAMES LOUIS GROVES,

 

            Complainant,

 

                        v.

 

CONSOL PENNSYLVANIA COAL COMPANY, LLC, 

                        Respondent                                                                                 |   |   | DISCRIMINATION PROCEEDING

 

Docket No. PENN 2023-0049

MSHA No. PITT-CD-2023-01

 

 

 

 

 

 

 

 

 

 

Mine ID: 36-07230

Mine: Bailey Mine

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**ORDER ON SECRETARY’S MOTION FOR DEFAULT**

 

 

Before:                        AdministrativeLaw Judge William B. Moran

* *

TheSecretary of Labor has filed a Motion for Default Judgment. In the Motion,filed on April 10, 2023, and served solely via electronic mail on AttorneyAlbert S. Lee, the Secretary, through Attorney Alexandra Gilewicz, has moved foran order to show cause and default judgment because Consol *decided*[1]not to answer this whistleblower complaint. The Secretary filed her complaintin this matter on behalf of Complainant on February 27, 2023. The Commissionconfirmed receipt of the complaint that same day. Consol was notified that itsanswer must be filed within 30 days, by March 29, 2023. Consol has yet to filean answer, and any answer filed at this time will be untimely. The Secretaryrequests the Commission to issue a show cause order. If Consol’s response tothe show cause order is insufficient, the Secretary requests that theCommission grant this motion for default judgment and order all the reliefrequested in the complaint. (emphasis added).

 

Motionat 1. 

 

Accordingto the Commission’s electronic case management system (“eCMS”), Attorney AlbertS. Lee, with Tucker Arensberg, P.C., who was initially Counsel for theRespondent, was sent notice of this proceeding on February 27, 2023, at thesame emailaddress listed in the distribution,below. The notice was sent solely via electronic mail. That filing informedthat an Answer was required to be filed within 30 days after service of theComplaint to the operator. *Id*.

 

CommissionRule 66(a), 29 C.F.R. § 2700.66(a), requires, in relevant part, that “[w]hen aparty fails to comply with . . . these rules . . . an order to show cause shallbe directed to the party before the entry of any order of default ordismissal.” Accordingly, on August 16, 2023, the Court issued an Order to Show Causein which the Respondent was ordered to respond on or before August 23, 2023,setting forth why it should not be held in default.

 

However,there had been a significant development subsequent to the Secretary’s Motionfor Default Judgment. The initial attorney, Mr. Lee, was replaced by new legalcounsel, Attorney Christopher D. Pence. Attorney Pence filed a notice ofappearance in this matter on August 14, 2023. Attorney Lee is no longer counselfor the Respondent in this matter. Attorney Pence and his law firm are notassociated with Attorney Lee or his law firm. Thereafter, the Commission’s eCMSrecord reflects that Attorney Pence filed an Answer on August 23, 2023.

 

TheRespondent also answered the Court’s show cause order on August 23, 2023, settingforth that it should not be held in default as the mine’s former attorney, Mr.Lee, stated that he never received the complaint. Mr. Lee filed an affidavit,affirming that the complaint was never received. 

 

Mr. Lee is adamant that he did not receive theDiscrimination Complaint, Motion for Default Judgment and email from theSolicitor’s Office to the Court in his inbox. No one disputes the Solicitor’sOffice hit ‘send’****on the email, but for reasons unknown to Mr. Lee andCONSOL PA those documents were never delivered to Mr. Lee’s inbox. Mr. Lee hassearched his inbox and his spam filter to no avail. Mr. Lee’s Firm has aparticularly robust computer and email security system in place because oftheir work in banking matters. There have been previous occasions where emailhas been stuck in filters but they have always been located. This situation isunique in that the emails from the Solicitor’s office have not been located.Mr. Lee unequivocally stated that he did not ignore multiple emails from the Solicitor’sOffice.

 

Respondent’s Response to Order to Show Cause at 3.

TheCourt is guided by the Commission’s observation “that default is a harsh remedyand that, if the defaulting party can make a showing of good cause for afailure to timely respond, the case may be reopened and appropriate proceedingson the merits will be permitted. *See Coal Prep. Servs., Inc*., 17 FMSHRC1529, 1530 (Sept. 1995).” *See, for example, Benton County Stone*, 2023 WL4404507, (June 2023).

 

 

Commission case law holds that there is an exceptionto the requirement for timely filing of pleadings, where adequate cause hasbeen shown for the belated filing, and there is no evidence to suggest that badfaith was present in causing the delay, and where there is no prejudice presentas a result of the delay. *See KaiserAluminum and Chemical Corporation v. Secretary of Labor*, 3 FMSHRC 2296, 2297 (Oct. 1981) (denyinga motion for default where the Secretary claimed that due to issues intheir office procedures, they did not receive the actual notice on their desk).*See also Secretary of Labor v. ValleyCamp Coal Company*, 1 FMSHRC 791 (Jul. 1979) (holding that the mistake or neglect of an attorney and thebreakdown of internal office procedures were found tobe adequate cause to justify late filing).

Inthis instance, the points made in Respondent’s Sur-Reply are well-taken,incorporated by reference, and the text of the Sur-response has been includedin the Appendix to this decision as a useful exposition on motions for default.Consistent with that determination, there is simply no legitimate basis for theCourt to conclude that Attorney Lee has been untruthful in his representationsto the Court. Even if the Court were suspicious of the attorney’srepresentations, which it is *not*, suspicions are insufficient toconclude that the attorney was being disingenuous. Further, the Secretary hasnot suffered prejudice by the delay. It is noted that this case has been setfor a hearing commencing on Wednesday, November 14, 2023, less than eight weeksfrom now. 

 

Accordingly,it would be fundamentally unfair and unduly harsh to deny the Respondent theopportunity to defend under these circumstances. This is in large part becausethere is no evidence to suggest that the Respondent’s initial attorney, Mr.Lee, ignored the various emails regarding the initial complaint and motion fordefault or is being dishonest regarding his affidavit.

 

TheCourt has considered each party’s arguments and for the foregoing reasons, theSecretary's Motion is **DENIED** and the Court orders that CONSOL PA’sAnswer to Discrimination Complaint be accepted.  

 

 

 

 

/s/ William B. Moran

              William B. Moran

              Administrative Law Judge

 

 

 

 

**APPENDIX**

 

 

**RESPONDENT CONSOL PENNSYLVANIA COAL COMPANY, LLC’SSUR-RESPONSE TO REPLY TO RESPONSE TO ORDER TO SHOW CAUSE AND MOTION FOR DEFAULT****JUDGMENT**

 

Pending before the Court isthe Secretary’s Motion for Default Judgment which seeks an Order to Show Causeas to why CONSOL Pennsylvania Coal Company, LLC (“CONSOL PA”) should not beheld in default for failing to timely respond to the Secretary’s DiscriminationComplaint filed pursuant to Section 105(c) of the Federal Mine Safety andHealth Act of 1977, as amended (“Mine Act”). The Secretary’s Motion was filedApril 10, 2023. The Court issued the requested Order to Show on August 16, 2023and directed CONSOL PA to show cause as to why it should not be held indefault. CONSOL PA filed its response to the Motion for Default and the Orderto Show Cause. On August 23, 2023. The Secretary filed a Reply to this Responseon August 30, 2023 and continues to insist that the Court order CONSOL PA is indefault and prevent it from defending this case on the merits. However, thearguments advanced in the Secretary’s Reply simply do not overcome theCommission’s strong preference that cases be decided on their merits.

 

**I.              ****CONSOL PA Was Not ProperlyServed** In its initial Response,CONSOL PA fully set forth the law which governs whether emailing the Complaintto Mr. Lee constituted adequate service. In Reply, without citing any cases,the Secretary disputes CONSOL PA’s interpretation of Rule 7 of the Commission’sProcedural Rules and argues that Mr. Lee was the agent in fact authorized toaccept service of the Complaint. CONSOL PA believes the law is clear and thatservice on a party is only perfected by emailing an attorney when that attorneyis specifically authorized to accept service for the party. Attached as Exhibit1 is a second affidavit from Mr. Lee affirmatively stating that he was notauthorized to accept service of the Complaint on behalf of CONSOL PA and hisrepresentation was limited to the investigation. Moreover, there is noindication he “entered an appearance on behalf of such party [CONSOL] pursuantto Rule §2700.3(c)”, as required by Rule §2700.7(d), which entry of appearancerequires that: documents that may serve as an entry of appearance shall be onlythose filed with the Commission or Commission judge in a proceeding under theMine Act or the Commission's procedural rules, rather than documents filed withMSHA. 64 FR 48707, 48709 (emphasis added). The Secretary seizes on Mr. Lee’sstatement to MSHA’s special investigator that he represented CONSOL PA “inconnection with” Mr. Groves’ complaint. This statement was made on November 1,2022, at the beginning of MSHA’s investigation. As no Complaint with theCommission had been filed, this was not an “appearance” as contemplated byCommission Procedural Rules 7(d) and 3(c), 29 C.F.R. §2700.7(d) and §2700.3(c),or an agreement accept service for any future complaint. Mr. Lee’s secondaffidavit is clear on this point. Of course, had Mr. Lee received the email, hecould have accepted service on behalf of CONSOL PA (with its permission). Butin this case he did not and, without a specific acceptance, the Secretary wasbound to follow the applicable Rules to ensure proper service. CONSOL PAbelieves the analysis it provided in its original Response clearly demonstratesthat service of the Complaint was improper. CONSOL PA urges the Court to adoptthat analysis and find that the Complaint was not properly served in February.CONSOL PA’s Answer filed on August 23, 2023 should be accepted as timely.

 

**II.           ****Mr. Lee Did Not Lie to theCourt**

 

During the Secretary’s investigation of Mr. Groves’Complaint, CONSOL PA was represented by Attorney Albert Lee. Mr. Lee participatedin a conference call with the Court on August 24, 2023 and explained hisefforts to search for previous emails from the Solicitor’s Office forwardingthe Complaint and Motion for Default Judgment when the Complaint was notanswered in what the Secretary contends was the responsive pleading deadline.Mr. Lee explained his efforts to locate the Complaint and the Motion. AlthoughMr. Lee has not discovered the technical reason the emails did not appear inhis inbox, he offered an explanation as to how that could occur. Mr. Lee lateraffirmed the veracity of the statements he made to the Court. Mr. Lee hasstated to the Court, both in an email and verbally, and affirmed by affidavit,that the first notice he received that a Complaint was filed was the July 25,2023 email from Judge Moran. The Secretary has characterized Mr. Lee’s affirmedstatements to the Court as “inherently incredible” (p.2 and 11), and that they“strain credulity” (p. 11) and has characterized Mr. Lee’s efforts to locatethe missing email as “vague” (p.12). The essence of the Secretary’s position isthat Mr. Lee lied about receiving emails from the Solicitor’s Office and madelittle effort to locate the emails when he discovered a Complaint was filed andallegedly emailed to him. CONSOL PA asserts that there is no basis for theCourt to find Mr. Lee, an officer of the Court who has affirmed statements madeto the Court, is a liar. While Mr. Lee cannot state with certainty why theemails did not appear in his inbox, there is no incentive for Mr. Lee to ignorethe emails, fail to advise CONSOL PA of the Complaint and fail to ensure atimely response is filed. The only conclusion that should be reached is thatMr. Lee did not receive the emails related to this matter until he received theemail from Judge Moran. The Secretary suggests that Mr. Lee should havediscovered the “problem” with his Firm’s email system between the filing of theComplaint and the email from Judge Moran. Inasmuch as the reason Mr. Lee didnot receive the emails prior to Judge Moran’s email is unknown, it cannot bestated with certainty that his Firm’s email system is the problem. Neither theundersigned nor Mr. Lee are computer scientists or qualified to explain all thetechnical reasons multiple emails may not be delivered to an inbox. While itstands to reason that a spam or security filter may be to blame, there arecertainly other possibilities, including an issue with the sender’s emailsystem. Notably, the Secretary has not produced any read receipts from the emailforwarding the Complaint or any subsequent email.1 Mr. Lee’s affirmed statementthat he did not receive the Complaint or the subsequent emails should besufficient. Mr. Lee is an attorney with decades of experience and practices ata well-respected Pittsburgh law firm. He serves on his Firm’s board ofdirectors and risk management committee and certainly understands theimportance of deadlines in a litigation setting. Mr. Lee has produced yetanother affidavit indicating that he represented CONSOL PA in connection withthe investigation and represents the company in other employment relatedmatters. He has affirmed that simply would not ignore any CONSOL-related emailand there is simply no reason to disbelieve him. N. 1: The emails referenced bythe Secretary prior to the filing of the Complaint do contain read receipts butare not relevant to the analysis. At that time, no Complaint had been filed andno deadline established by any applicable Rule had passed. 

 

**III.         ****There is no Prejudice**

 

TheSecretary strains to convince the Court that she has suffered prejudice as aresult of the delay in this case. This assertion is unpersuasive. As pointedout in the Response, no representative of the Secretary telephoned Mr. Lee oranyone employed by CONSOL PA to ask about the status of the Complaint.According to the Secretary, the deadline to answer passed in late March and theSecretary filed the Motion in April. If delay was harmful to the Secretary, whydid she engage in motion practice (which takes time) rather than telephoningMr. Lee and inquiring about the status of the Complaint? After filing theMotion on April 10, 2023, why did she wait the remainder of April and all ofMay 2023 without inquiring or telephoning Mr. Lee? The obvious answer to thisquestion is that, while the matter is no doubt consequential, it was not sourgent that traditional Commission litigation timelines were inadequate. Thatis, until the Secretary saw an opportunity to gain a litigation advantage bynow arguing urgency. It is noteworthy that there are numerous reporteddecisions wherein the Secretary or a complaining miner failed to meet thetimeliness requirements in filing a discrimination complaint or a complaint forcompensation. Of course, the Secretary’s position in those cases is the exactopposite of her litigating position in this case. For example, in permitting alate filing as advocated by the Secretary, the Commission stated: [T]hepertinent legislative history nevertheless indicates that these timeframes arenot jurisdictional . . . ‘The failure to meet any of them should not result inthe dismissal of the discrimination proceedings; the complainant should not beprejudiced because of the failure of the Government to meets its timeobligations.’ Plainly, Congress clearly intended to protect innocent minersfrom losing their causes of actions of delay by the Secretary. (Internalcitations omitted). *Secretary of Labor v. 4-A Coal Co., Inc*., 8 FMSHRC905, 908 (June 1986). In order for an untimely complaint to be dismissed,“material delay” must result and the operator must demonstrate that a “serious”delay significantly impaired a “meaningful opportunity to defend.” *Farmer v.Island Creek Coal Co*., 13 FMSHRC 1226, 1231 (May 1991), *quotingSecretary v. 4- A Coal Co., Inc*., 8 FMSHRC 905, 908 (June 1986). Impairmentof a meaningful opportunity to defend includes “tangible evidence that hassince disappeared, faded memories, or missing witnesses*.” See Walter A.Schulte v. Lizza Industries, Inc*., 6 FMSHRC 8, 13 (1984). *See also DavidHollis v. Consolidation Coal Co*., 6 FMSHRC 21, 23-25 (January 1984), aff'd.mem.,750 F.2d 1093 (D.C. Cir. 1984) (table). There is no indication of lost ormissing witnesses here. The Secretary has a long, consistent history ofopposing an operator’s attempt to dismiss a discrimination complaint becausethe Secretary missed the filing deadline. When the Secretary is late in filinga complaint, justice requires that matter be decided on its merits and thecomplaining miner have his day in Court. When an operator allegedly misses adeadline to respond, does the same notion of justice preclude a hearing on themerits and mandate default, even when an officer of the Court has sworn he didnot receive the Complaint? Does justice require that the Court ignore theservice requirements of the Rules and deem a Complaint properly served when thereceiving lawyer was not authorized to accept service and has sworn he did notreceive the Complaint? The inconsistency of the Secretary’s litigating positionin this case is, to borrow from the Secretary, obvious to the most casualobserver.

 

Respondent’sSur-Reply at 1-6.

 

 

 

 

Distribution:

 

Alexandra J. Gilewicz, Esq.,U.S. Department of Labor Office of the Solicitor Division of Mine

Safety & Health 201 12thStreet South, Suite 401 Arlington, VA 22202

(Gilewicz.Alexandra.J@dol.gov)

 

Christopher D. Pence, Esq.,Hardy Pence PLLC, #10 Hale Street, 4th Floor – Charleston, WV

25301 cpence@hardypence.com

 

Albert S. Lee, Esq., TuckerArensberg, P.C., 1500 One PPG Place, Pittsburgh, PA 15222

(alee@tuckerlaw.com)

James Louis Groves, 1209Waynesburg Pike, Moundsville, WV 26041

(jg81874@gmail.com)

----

[1] To be clear, as explained *infra*, the Courtdoes not subscribe to the Secretary’s assertion that Consol *decided*notto answer the Complaint.