Kelley Trucking Company

Plain-English summary

Kelley Trucking failed to answer the Secretary’s complaint and a later show-cause order, leading an ALJ to enter a default order assessing a $400 civil penalty. The Commission treated the company president’s later handwritten letter as a late request for discretionary review and considered the company’s claim that it had tried to respond. Because the record did not resolve whether a communication or mail-delivery problem caused the default, the Commission vacated the ALJ’s default order and remanded for the judge to decide whether relief from default was warranted. The Commission did not decide the underlying safety violation.

Decision snapshot

• Governing provisions: 30 C.F.R. § 48.25(a), 30 C.F.R. § 100.5, and 30 U.S.C. § 823(d)(1).
• Outcome: The $400 default order was vacated, and the matter was remanded for further proceedings.
• Key point: A pro se operator’s plausible claim that it attempted to respond can justify an opportunity to seek relief from a final default order when the record does not resolve the communication failure.

Full text (FMSHRC public release)

CCASE:
MSHA V. KELLEY TRUCKING
DDATE:
19861230
TTEXT:

             FMSHRC-WDC
             DEC 30, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

  v.              Docket No. CENT 85-109

KELLEY TRUCKING COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982),
Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default on July 21, 1986, finding Kelley Trucking Company
("Kelley Trucking") in default and assessing a civil penalty of $400.
Approximately four and one-half months later, the Commission received
a handwritten letter from Curtis Kelley, president of Kelley Trucking,
requesting a hearing. For the reasons explained below, we deem this
letter to constitute a request for relief from a final Commission
order, vacate the judge's default order and remand for further
proceedings.

On April 18, 1985, an inspector of the Department of Labor's

Mine Safety and Health Administration ("MSHA") issued Kelley Trucking
a citation pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C.
$ 814(d)(1), and a withdrawal order pursuant to section 104(g)(1),
30 U.S.C. $ 814(g)(1), alleging a violation of 30 C.F.R. $ 48.25(a).
This enforcement action was taken on the grounds that two of the
company's drivers, hauling coal under contract at the Bokoshe N.W.
Mine of Commercial Fuels, Inc. ("Commercial Fuels"), lacked required

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miner's training. On June 20, 1985, MSHA's Office of Assessments,
under the special assessment procedures of 30 C.F.R. $ 100.5,
notified Kelley Trucking that it proposed a civil penalty of $400
for the alleged violation. On July 12, 1985, Kelley Trucking timely
filed its 'Blue Card" request for a hearing before this independent
Commission. On August 20, 1985, the Secretary of Labor filed a
Complaint Proposing Penalty. The record indicates that Kelley
Trucking did not file an answer to the complaint.

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On April 25. 1986, approximately eight months after the
Secretary's complaint was filed, Judge Merlin issued an Order to
Show Cause directing Kelley Trucking to answer the complaint within
30 days or be placed in default. On July 21, 1986, for failure to
respond to the show cause order or to file the requested answer, the
judge issued an Order of Default against Kelley Trucking directing it
to pay the $400 civil penalty proposed by the Secretary. Kelley
Trucking did not file with the Commission a request for review of the
default order and review was not directed by the Commission on its own
motion. Accordingly, the judge's default order became a final order
of the Commission 40 days after issuance. 30 U.S.C. $ 823(d)(1).

On December 8, 1986, the Commission received by certified mail

a four-page, handwritten letter of explanation from Curtis Kelley,
owner of Kelley Trucking, attached to which was a copy of a letter
dated July 30, 1986, on behalf of Kelley Trucking to Allen R. Tilson,
Esq., of the Secretary's Office of Solicitor in Dallas, Texas. In
addition to contesting the violation and requesting a hearing, the
December 8 letter stated that after receiving "the letter" from Judge
Merlin, "everytime I would get any mail concerning this matter, I
would answer ... and would ask for a hearing." Kelley stated
specifically that he had answered the April 25, 1986 show cause order,
requesting a hearing, but had received no response. The July 30,
1986 letter to the Secretary's Solicitor's Office explained Kelley's
position generally and his inability to pay the civil penalty in one
lump sum.

The judge's jurisdiction in this matter terminated when his
default order was issued on July 21, 1986. 29 C.F.R. $ 2700.65(c).
Because the judge's decision has become final by operation of law,
Kelley Trucking's request for a hearing must be construed as a
request for relief from a final Commission decision incorporating
by implication a late-filed petition for discretionary review. See
e.g., M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1270-71 (September 1986).
Two questions are presented: (1) whether preliminary relief should
be permitted by accepting Kelley Trucking's letter as a late-filed
petition for discretionary review; and (2) whether the judge's
default order should stand or Kelley Trucking's failure to answer
the complaint and show cause order should be excused and the
proceeding on the merits reopened. Id.

We address the first question with reference to the standards

set forth in Fed. R. Civ. P. 60(b)(1), which provides:

 On motion and upon such terms as are just, the court

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 may relieve a party or his legal representative from a
 final judgment, order, or proceeding for the following
 reasons: mistake, inadvertence, surprise, or excusable
 neglect; ... or ... any other reason justifying relief
 from the operation of the judgment.

Kelley Trucking appears to be a small, independent trucking firm,
and has proceeded without benefit of counsel. On its face, Kelley
Trucking's

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December 1986 letter also reveals a lack of understanding of
relevant Mine Act and Commission procedures and confuses the separate
roles of the Commission and the Department of Labor. We note in
mitigation that Kelley Trucking did arrange to have a letter sent
to the Department of Labor's Dallas Office explaining its general
situation shortly after issuance of the default order. Under the
circumstances, we accept Kelley Trucking's submission as a late-filed
petition for discretionary review. See Sundt, supra. 8 FMSHRC at
1271.

As to the substantive aspects of Kelley Trucking's request, we

have observed repeatedly that default is a harsh remedy and that if
the defaulting party can make a showing of adequate or good cause
for the failure to respond, the failure may be excused and appropriate
proceedings on the merits permitted. Sundt, 8 FMSHRC at 1271. Rule
60(b)(1) factors: the forefront, we find relevant the fact that the
company appears to be a small trucking firm, which has proceeded
without benefit of counsel. The company filed a timely "Blue Card"
request for a hearing. Kelley Trucking's December letter alleges that
it submitted a response to the judge's show cause order and that it
communicated in good faith throughout the proceedings below. The
record does not contain any such response to the show cause order.
However, Kelley Trucking has raised the possibility of an unintended
failure of communication or breakdown in the mail delivery system.
On the present record, we cannot evaluate the credibility of this
assertion and are not prepared to rule summarily. Sundt 8 FMSHRC
at 1271. In the interest of justice, we conclude that Kelley Trucking
should have the opportunity to present this position to the judge, who
shall determine whether relief from the default order is warranted.

For the foregoing reasons, the judge's default order is vacated

and the matter is remanded for proceedings consistent with this order.
Kelley Trucking is reminded to serve the opposing party with copies of
all its correspondence and other filings in this matter. 29 C.F.R.
$ 2700.7.

               Ford B. Ford, Chairman


               Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner

Page 6

James A. Lastowka, Commissioner

L. Clair Nelson, Commissioner

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Distribution

Mr. Curtis Kelley
Kelley Trucking Company
H C 63, Box 10
Hodgen, Oklahoma 74939

Allen Reid Tilson, Esq.
Office of the Solicitor
U.S. Department of Labor
525 Griffin Street, Suite 501
Dallas, Texas 75202

Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006