Austin Powder Company

Plain-English summary

Austin Powder Company asked the Commission to reopen a penalty case after an unanswered show-cause order became a default. The company supplied fax confirmations showing that counsel sent an answer to MSHA and the Commission after the penalty petition, then sent it again after the show-cause order. The Secretary did not oppose reopening and confirmed that the regional office received both copies, but the answers listed the wrong docket number. The Commission treated the error as grounds for relief, vacated the default in the interest of justice, and remanded the case 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: The default order was vacated and the penalty proceeding was remanded to the Chief ALJ.
• Key point: A documented attempt to answer can support reopening when an incorrect docket number caused the filing problem.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 26, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

v.

AUSTIN POWDER COMPANY 

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Docket No. KENT 2010-1529-M

A.C. No. 15-00079-230016

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 November 1, 2011, the Commission received from Austin
Powder Company (“Austin”) 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 Administrative Law 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 Austin’s failure to answer the
Secretary’s October 26, 2010 Petition for Assessment of Civil Penalty.

Austin asserts that its counsel filed an answer to the penalty petition on November 29,
2010. Austin enclosed a copy of the fax confirmation page, indicating the answer was sent to
MSHA and the Commission. Austin’s counsel states that she faxed another copy of the answer
to MSHA and the Commission on May 5, 2011, in response to the Show Cause Order. Austin
filed this motion to reopen after receiving MSHA’s delinquency notice, dated October 5, 2011.

The Secretary does not oppose the request to reopen and notes that the Nashville
Regional Office attorney received both copies of Austin’s answer. However, those answers
included an incorrect case docket number.

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 Austin’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Order 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:

Nichelle Young, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

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