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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

 September 21, 2023

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 decided1 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).

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. 

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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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 email address 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’sformer 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).
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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. 

 

 _____________________ 

 William B. Moran

 Administrative Law Judge
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APPENDIX

RESPONDENT CONSOL PENNSYLVANIA COAL COMPANY, LLC’S SURRESPONSE 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 
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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 
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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 
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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.
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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)