Bledsoe Coal Corporation

Plain-English summary

Bledsoe Coal Corporation asked the Commission to reopen two penalty cases after show-cause orders became defaults. The company said it had timely answered both penalty petitions and believed those earlier answers were enough to avoid default. The Secretary did not oppose reopening and confirmed that the regional solicitor received the answers shortly after they were sent. The Commission reopened both proceedings in the interest of justice, vacated the default orders, and remanded the cases for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(1) and (d)(2)(A)(i); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: Both default orders were vacated and the penalty proceedings were remanded to the Chief ALJ.
• Key point: Timely answers already received by the Secretary can establish good cause to reopen later defaults arising from the same cases.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 25, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

BLEDSOE COAL CORPORATION

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Docket No. KENT 2010-1016

A.C. No. 15-19132-217056

Docket No. KENT 2010-1149

A.C. No. 15-19132-219846

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On January 4, 2012, the Commission received from Bledsoe
Coal Corporation (“Bledsoe”) two motions seeking to reopen two penalty assessment
proceedings and relieve it from the orders of default entered against it.

On March 16, 2011, Chief Administrative Law Judge Lesnick issued two Orders to Show
Cause which by their terms became Orders of Default if the operator did not file its answers
within 30 days. These Show Cause Orders were issued in response to Bledsoe’s failure to
answer the Secretary’s June 16, and July 16, 2010 Petitions for Assessment of Civil Penalty.

Bledsoe asserts that it timely answered the assessment petitions on July 1, and August 3,
2010. Bledsoe further states that upon receiving the Show Cause Orders, it believed that its prior
answers were sufficient to avoid default in these cases. The Secretary does not oppose the
requests to reopen, and notes that the Nashville Regional Solicitor’s office received Bledsoe’s
answers on July 6, and August 4, 2010.

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 Bledsoe’s requests and the Secretary’s responses, in the interest of
justice, we hereby reopen the proceedings and vacate the Orders of Default. 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, 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:

John M. Williams, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

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