MMR Constructors, Inc. (Commission decision, March 2, 2012)

Plain-English summary

MMR Constructors did not answer the Secretary's penalty petition, and a Chief ALJ's show-cause order became an order of default after 30 days. MMR said it did not receive that order until months later and had been negotiating a settlement with MSHA. The Secretary first opposed reopening but later withdrew that opposition and asked to reopen the case so the settlement could be submitted for approval. The Commission granted MMR's motion in the interest of justice and remanded the case for further proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 820(k)
• Outcome: The default was reopened and the case was remanded so the parties could seek approval of their settlement.
• Key point: The Commission may reopen a default in the interest of justice when the operator reports delayed receipt and both parties seek consideration of a settlement.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 2, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

MMR CONSTRUCTORS, INC.

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Docket No. CENT 2010-760-M

A.C. No. 03-00256-217706

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On October 5, 2011, the Commission received from MMR Constructors, Inc. (“MMR”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On May 3, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its terms became an Order of Default if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to MMR’s failure to answer the Secretary’s October 21, 2010 Petition for Assessment of Civil Penalty.

MMR asserts that it did not receive the Show Cause Order until October 5, 2011, and that it was in the process of negotiating a settlement agreement with MSHA. The Secretary originally opposed the motion. However, the Secretary subsequently withdrew her opposition, and requested that this case be reopened for the limited purpose of allowing the parties to submit their settlement agreement for approval pursuant to section 110(k) of the Mine Act, 30 U.S.C.
§ 820(k).

Having reviewed MMR’s request and the Secretary’s response, in the interest of justice, we grant MMR’s motion and remand this case 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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy                                                                                       

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Holly Hollis

Corporate Counsel

MMR Group, Inc.

P.O. Box 84210

Baton Rouge, LA 70884

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021