Amber Coal Company

Plain-English summary

MSHA cited Amber Coal Company after a fatal roof fall accident at its No. 7 mine and proposed an $8,500 penalty for an alleged roof-control violation. Amber did not answer the complaint, so an ALJ entered a default order. Amber later sent a response to the Department of Labor instead of the Commission, and the Commission treated that misdirected letter as a request for relief from the final default order. The Commission vacated the default order and remanded for the judge to determine whether relief was warranted.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.200
• Outcome: The ALJ's default order was vacated, and the case was remanded for further proceedings.
• Key point: A potentially misdirected response from an unrepresented small operator may warrant an opportunity to address the merits before default is enforced.

Full text (FMSHRC public release)

CCASE:
MSHA V. AMBER COAL
DDATE:
19890201
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                            February 1, 1989

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

v. Docket No. KENT 88-136
AMBER COAL 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), Chief Administrative Law Judge Paul Merlin issued
an Order of Default on November 21, 1988, finding Amber Coal Co.
("Amber") in default and ordering Amber to pay a civil penalty of
$8,500. The default order was issued because Amber had failed to
respond to an earlier Order to Show Cause. Subsequently, the
Commission received from Amber a copy of a letter that Amber
apparently had sent in response to the show cause order but had
misdirected to the Department of Labor. For the reasons set forth
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 November 12, 1987, following an investigation of a fatal

roof fall accident at Amber's No. 7 mine, an inspector of the
Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Amber a citation pursuant to section 104(a) of
the Act, 30 U.S.C. $ 814(a), alleging a violation of 30 C.F.R.
$ 75.200, the mandatory roof control standard for underground coal

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mines. On May 20, 1988, MSHA's Office of Assessments, under the
special assessment procedures of 30 C.F.R. $ 100.5, notified Amber
that it proposed a civil penalty of $8,500 for the alleged violation.
On May 26, 1988, Amber filed its "Blue Card" request for a hearing
before this independent Commission. On June 24, 1988, the Secretary
of Labor filed a complaint proposing the assessment

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of a civil penalty for the violation. The record indicates that
Amber did not file an answer to the complaint with the Commission.

On September 8, 1988, approximately two and one-half months

after the Secretary's complaint was filed, Judge Merlin issued a
show cause order directing Amber to answer the complaint within
30 days or be found in default. When no answer was filed by
November 21, 1988, Judge Merlin issued an Order of Default against
Amber, directing it to pay the $8,500 civil penalty proposed by
the Secretary. See 30 C.F.R. $ 2700.63 (summary disposition of
Commission proceedings).

 On December 1, 1988, the Commission received from Amber a

copy of a letter dated September 15, 1988, addressed to the
sub-regional office of the Solicitor of the Department of Labor,
Nashville, Tennessee and signed by Amber's safety director. (The
letter begins "[t]his is respectfully submitted as an answer to why
we disagree with the penalty levied against us," and sets forth
Amber's defense to the citation. Amber's submission, on its face,
raises the possibility that Amber's letter to the Department of
Labor was meant as a response to the judge's show cause order but
was erroneously filed with the wrong agency.

 The judge's jurisdiction in this matter terminated when

his default order was issued on November 21, 1988. 29 C.F.R.
$ 2700.65(c). Because the judge's decision has become final by
operation of law, 30 U.S.C. $ 823(d)(1), we can consider the merits
of Amber's submission only if we construe it as a request for
relief from a final Commission decision incorporating a petition
for discretionary review. See 29 C.F.R. 2700.1(b) (applicability
of Federal Rules of Civil Procedure to Commission proceedings);
Fed. R. Civ. P. 60(b) (relief from judgment or order).

 Amber appears to be a small coal company proceeding without

benefit of counsel. In conformance with the standards set forth in
Fed. R. Civ. P. 60(b)(1), the Commission has previously afforded
such a party relief from final orders of the Commission where it
appears that the party's failure to respond to a judge's order and
the party's subsequent default are due to inadvertence or mistake.
See Kelley Trucking Co., 8 FMSHRC 1867 (December 1986); M.M. Sundt
Construction Co., 8 FMSHRC 1269 (September 1986). Here, Amber may
have confused the roles of the Commission and the Department of Labor
in this adjudicatory proceeding. Amber's letter was apparently sent
to the Department of Labor's Solicitor shortly after the judge issued
the show cause order and well within the time provided for a response.

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Under these circumstances, we will accept Amber's submission as a
request for relief from a final order incorporating by implication a
petition for discretionary review.

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. Kelley, 8 FMSHRC
at 1869; Sundt, 8 FMSHRC at 1271. Although Amber's submission raises
the possibility of a misdirected communication, we cannot make a
determination with certainty on the basis of the present record. In the

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interest of Justice, we conclude that Amber should have the
opportunity to present its position to the judge, who shall
determine whether final relief from the default order is warranted.

 Accordingly, the default order is vacated, and the matter

is remanded for proceedings consistent with this order. Amber
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.

               Richard V. Backley, Commissioner

               Joyce A. Doyle, Commissioner

               James A. Lastowka, Commissioner

               L. Clair Nelson, Commissioner

Distribution

Theresa Ball, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Road, Suite B-201
Nashville, TN 37215

Keith Akers
Amber Coal Company, Inc.
29501 Mayo Trail
Catlettsburg, KY 41129