Trivette Trucking

Plain-English summary

Trivette Trucking asked the Commission to reopen two penalty cases after show-cause orders became defaults. The company said it did not forward the penalty petitions to counsel because it believed answers had already been filed, and counsel did not receive the show-cause orders. Trivette had also reached proposed settlements with MSHA. The Secretary did not oppose reopening for the limited purpose of allowing the settlement motion to be submitted. The Commission vacated both defaults in the interest of justice and remanded the 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 cases were remanded so the settlement motion could be considered.
• Key point: Final defaults may be reopened when filing confusion prevented answers and both sides have already negotiated proposed settlements.

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.

TRIVETTE TRUCKING

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Docket No. KENT 2010-803

A.C. No. 15-18784-212368

Docket No. KENT 2010-804

A.C. No. 15-18946-212371

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 October 28, 2011, the Commission received from Trivette
Trucking (“Trivette”) two motions seeking to reopen two penalty assessment proceedings and
relieve it from the orders of default entered against it.

On March 16, and March 17, 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 Orders to Show Cause were issued in response to Trivette’s
failure to answer the Secretary’s March 22, 2010 Petitions for Assessment of Civil Penalty. The
Commission did not receive Trivette’s answers within 30 days, so the orders of default became
effective on April 18, 2011.

Trivette asserts that it failed to forward the Secretary’s petitions to its counsel because it
believed that answers were already filed in these matters. Additionally, Trivette states that the
Show Cause Orders were not sent to its counsel, even though its counsel has entered an
appearance on its behalf in other matters before the Commission. Moreover, Trivette was able to
reach settlement proposals with MSHA.

The Secretary does not oppose the requests to reopen for the limited purpose of allowing
the submission of the Motion to Approve Settlement, filed August 5, 2011. The Pikeville, KY,
Conference and Litigation Representative (“CLR”) confirms that he was unaware of the Show
Cause Orders.

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 Trivette’s requests and the Secretary’s response, 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:

Billy R. Shelton, Esq.

Whitney L. Lucas, Esq.

Jones, Walters, Turner & Shelton, PLLC

151 N. Eagle Creek Drive, Suite 310

Lexington, KY 40509

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