B & M Trucking

Plain-English summary

An FMSHRC Administrative Law Judge dismissed Kenneth Howard's discrimination complaint after finding that he had not responded to an order to show cause. The Commission treated Howard's attorney's motion to reinstate as a timely petition for discretionary review, granted review, and vacated the dismissal. The case was remanded because the record showed possible non-willful counsel error and some indication that Howard had attempted to satisfy the filing requirements. The Commission left the substantive merits unresolved.

Decision snapshot

• Governing provision: 30 U.S.C. § 823(c)
• Outcome: The dismissal order was vacated and the discrimination proceeding was remanded for further proceedings.
• Key point: The Commission may allow a case to proceed when a party's default appears attributable to non-willful counsel error and the record shows a possible attempt to comply.

Full text (FMSHRC public release)

CCASE:
KENNETH HOWARD V. B & M TRUCKING
DDATE:
19890407
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                              April 7, 1989

KENNETH HOWARD

v.              Docket No. KENT 89-2-D

B & M TRUCKING

BEFORE: Ford, Chairman; Doyle and Lastowka, Commissioners

        DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

In this discrimination proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)
("Mine Act"), Commission Administrative Law Judge Gary Melick issued
an Order of Dismissal on February 27, 1989, finding that complainant
Kenneth Howard had failed to respond to an earlier Order to Show Cause
and dismissing Howard's discrimination complaint. Subsequently, the
Commission received from the attorney representing Howard a Motion to
Reinstate, asserting that the failure to respond to the show cause
order was due to counsel's misunderstanding of that order. Under the
circumstances presented, we deem this motion to constitute a timely
petition for discretionary review, which we grant. We vacate the
judge's dismissal order, and remand for further proceedings.

On October 3, 1988, Howard, by counsel, filed with the

Commission a discrimination complaint alleging that he had been
discriminatorily discharged by B&M Trucking ("B&M") in violation
of section 105(c) of the Mine Act. 30 U.S.C. $ 815(c). 1/ The
complaint, as supplemented on October 7, 1988, alleges that Howard,
a truck driver, was discharged because he had objected on safety
grounds to operating a front end loader that he had not been trained
to operate. The complaint requests backpay, reinstatement, punitive
damages, and attorney's fees and costs.

Page 2

1/ Under Commission Procedural Rule 40(b), 29 C.F.R. $ 2700.40(b),
as amended (52 Fed. Reg. 44882 (November 23, 1987)), a miner may file
his own section 105(c)(3) complaint of discrimination for alleged
violation of section 105(c) of the Mine Act only if the Secretary of
Labor has made a prior determination that no violation of the Act has
occurred. See also 30 U.S.C. $$ 815(c)(2) & (3).

Page 3

~500
In an Order to Show Cause dated December 2, 1988, Commission
Chief Administrative Law Judge Paul Merlin observed that Howard
had not shown compliance with the Commission's requirements for
filing a discrimination complaint pursuant to section 105(c)(3)
of the Mine Act and ordered the complainant to file with the
Commission a copy of a certified mail return receipt showing
delivery of the discrimination complaint to the operator and a
copy of the determination letter from the Department of Labor's
Mine Safety and Health Administration ("MSHA") finding that a
violation of the Mine Act had not occurred. The order directed
Howard to send the complaint to the operator, if he had not already
done so, along with a note to the operator stating that complainant
disagreed with MSHA's determination and was requesting review and
relief by the Commission. Howard was ordered to comply with the
above requirements within 30 days of the date of the order or to
show good reason for failure to do so.

On February 27, 1989, Judge Melick, to whom the matter had

been assigned, issued an Order of Dismissal in which he found
that complainant had failed to respond to the show cause order.
Accordingly, the judge dismissed the discrimination complaint.
On March 13, 1989, the attorney for Howard filed with Judge Melick
a Motion to Reinstate the discrimination complaint.

Because Judge Melick's jurisdiction in this matter terminated

when his dismissal order issued on February 27, 1989, 29 C.F.R.
$ 2700.65(c), he forwarded the Motion to Reinstate to the Commission's
Docket Office, where it was received on March 14, 1989. B&M has not
filed a response to this motion. Under the Mine Act and the
Commission's procedural rules, once a judge's decision has issued,
relief from the decision may be sought by filing with the Commission
a petition for discretionary review within 30 days of the decision.
30 U.S.C. $ 823(d)(2); 29 C.F.R. $ 2700.70. Here, the Motion to
Reinstate is a request for relief from the judge's decision and,
under the circumstances presented, we will treat it as a timely-filed
petition for discretionary review. See. e.g., Middle States
Resources, Inc., 10 FMSHRC 1130 (September 1988).

Judge Melick's dismissal of the complaint was based on

complainant's default in not responding to the show cause order.
The Commission has stated that "in general, if a defaulting party
can make a showing of adequate or good cause for the failure to
respond to an order, the failure may be excused and appropriate
proceedings on the merits permitted." M.M. Sundt Construction Co.,
8 FMSHRC 1269, 1271 (September 1986), citing Valley Camp Coal Co.,

Page 4

1 FMSHRC 791, 792 (July 1979). In assessing the existence of adequate
cause, explanatory factors akin to those mentioned in Fed. R. Civ. P.
60(b)(1) -- mistake, inadvertence, surprise, or excusable neglect --
may be relevant. Valley Camp, supra, 1 FMSHRC at 792 & n. 3. The
absence of bad faith on the part of the defaulting party is also a
relevant concern. Easton Constr. Co., 3 FMSHRC 314, 315 (February
1981). An attempt to comply at least partially with the order in
question may be a mitigating factor as well. Sigler Mining Co.,
3 FMSHRC 30 (January 1981).

In this case, Howard's counsel states that the failure to comply

with the show cause order was due to her own misunderstanding of the

Page 5

~501
judge's order. The Motion to Reinstate alleges that the complaint
was served on B&M within the period required by the show cause order,
and the certified mail return receipt is attached to the motion. The
complaint also outlines the relief requested. Thus, there is some
indication on the record of complainant's attempts to comply with
requisite filing requirements and with the show cause order. We are
reluctant to impose default by attributing to a party the non-willful
errors of its counsel. See, e.g., Jackson v. Beech, 636 F.2d 831,
835-37 (D.C. Cir. 1980).

 Although there is not sufficient information on the record

to permit us to rule finally on the substantive merits of Howard's
motion at this time, we conclude that in the interest of justice,
complainant should have the opportunity to present his position to
the judge, who shall determine whether final relief from the default
order is warranted. See Kelley Trucking Co., 8 FMSHRC 1867, 1869
(December 1986). In connection with further proceedings before the
judge, we note that Howard's attorney has not furnished the Commission
with a copy of the letter from MSHA indicating its determination
that no violation of the Act occurred, or with proof that Howard's
supplemental statement filed on October 7, 1988, has been served on
the operator.

 Accordingly, review of the judge's order of dismissal is

hereby granted, the order is vacated. and this matter is remanded for
further appropriate proceedings. 2/

                  Ford B. Ford, Chairman

                  Joyce A. Doyle, Commissioner

                   James A. Lastowka, Commissioner

2/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. $ 823(c),
we have designated ourselves a panel of three members to exercise
the powers of the Commission in this matter.