Robinson Construction (Commission decision, April 4, 2013)

Plain-English summary

Robinson Construction defaulted after the Commission did not receive an answer to the Secretary's penalty petition. The operator said it had sent an answer without certified-mail tracking and that its safety director was unfamiliar with the contest process, while the Secretary confirmed that MSHA had not received it. The Secretary did not oppose reopening. In the interest of justice, the Commission vacated the default and remanded the case for further proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 823(d); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The default order was vacated and the penalty proceeding was remanded.
• Key point: An untracked answer and process confusion supported reopening where the Secretary did not oppose relief.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 4, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROBINSON CONSTRUCTION

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Docket No. CENT 2011-1063-M

A.C. No. 23-00542-258847 A431

BEFORE: Jordan, Chairman; Young 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 August 22, 2012, the Commission received from Robinson Construction (“Robinson”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On January 3, 2012, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Robinson’s perceived failure to answer the Secretary of Labor’s August 4, 2011 Petition for Assessment of Civil Penalty. The Commission did not receive Robinson’s answer within 30 days, so the default order became effective on February 2, 2012.

Robinson asserts that it answered the penalty petition in 2011, but did not send it by certified mail. Robinson’s safety director further states that he is unfamiliar with the contest process. The Secretary does not oppose the request to reopen but notes that the Department of Labor’s Mine Safety and Health Administration (“MSHA”) did not receive an answer to the penalty petition.

The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final decision of the Commission.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). We have also observed 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 permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

Having reviewed Robinson’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is remanded 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, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Eugene Besand, Safety Director

Robinson Construction Co.

2411 Walters Lane

Perryville, MO 63775

www.robinsonconstruction.com

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710