Waste Coal Management, Inc.

Plain-English summary

Waste Coal Management failed to answer a civil penalty petition and an order to show cause, so an ALJ entered a default order assessing $273 in penalties. The company later sent a letter asking that the default judgment be dismissed, and the Commission treated the letter as a request for relief from the final decision and a late petition for discretionary review. Because the record did not show whether Waste Coal had a valid explanation for missing the judge's order, the Commission vacated the default order and remanded for the judge to decide whether relief from default was appropriate. The Commission granted discretionary review in the interest of justice.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 823(d)(1) and 823(d)(2); 29 C.F.R. §§ 2700.65(c) and 2700.70(a)
• Outcome: The ALJ's default order and $273 penalty assessment were vacated, and the matter was remanded for a determination on relief from default.
• Key point: The Commission may treat an untimely request as a motion for relief from a final decision when the record suggests the party may not have received the order and the interests of justice support further review.

Full text (FMSHRC public release)

March 25, 1992

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

v. Docket No. KENT 91-75

WASTE COAL MANAGEMENT, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners

ORDER

BY THE COMMISSION:

In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988) (the "Mine Act"), Commission Chief
Administrative Law Judge Paul Merlin issued an Order of Default on June 20,
1991, finding respondent Waste Coal Management, Inc. ("Waste Coal") in default
for failure to answer the civil penalty petition filed by the Secretary of
Labor and the judge's Order to Show Cause. The judge assessed civil penalties
of $273 as proposed by the Secretary. For the reasons that follow, we vacate
the Order of Default and remand this case for further proceedings.

On March 9, 1992, the Commission received a letter dated February 29,
1992, addressed to Judge Merlin, in which the president of Waste Coal requests
the judge to dismiss the Secretary of Labor's Motion for Default Judgment.
Apparently, neither the Secretary nor Waste Coal is aware that Judge Merlin
had held Waste Coal in default and had ordered it to pay the Secretary's
proposed penalties by order dated June 20, 1991. Counsel for the Secretary
filed the Motion for Default Judgment on November 19, 1991, and advised the
president of Waste Coal, by letter dated February 11, 1992, that the motion
had not been ruled upon by the judge. The Commission's records indicate that
the judge's Order of Default was sent to the parties by certified mail. The
Postal Service never returned the return receipt cards to the Commission,
however, suggesting that the orders may not have been received.

The judge's jurisdiction over this case terminated on June 20, 1991,
when his Order of Default was issued. 29 C.F.R. § 2700.65(c). 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 with the Commission
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). Waste Coal did not file a timely petition for discretionary
review within the 30-day period, nor did the Commission direct review on its
own motion. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's order became a final
decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(1).

Under the circumstances of this case, we deem the February 29 letter to
be a request for relief from a final Commission decision and to incorporate a
late-filed petition for discretionary review. See J.R. Thompson, Inc.,
12 FMSHRC 1194, 1195-96 (June 1990). Relief from a final judgment is available
to a movant under Fed. R. Civ. P. 60(b)(1) on the basis of mistake,
inadvertence, surprise or excusable neglect. See, e.g., Lloyd Logging, Inc.,
13 FMSHRC 781, 782 (May 1991). It appears from the record that Waste Coal
filed a "Blue Card" request for a hearing in response to the Secretary's
initial notification of proposed penalties and offered to settle this matter
for $125 at that time. It further appears that Waste Coal is proceeding
without benefit of counsel. We are unable on the basis of the present record
to evaluate whether Waste Coal has offered a cognizable explanation for its
failure to respond to the judge's show cause order. Consequently, in the
interest of justice, we will permit Waste Coal to present its position to the
judge, who shall determine whether final relief from default is appropriate.
See, e.g., Blue Circle Atlantic, Inc., 11 FMSHRC 2144, 2145 (November 1989).

Accordingly, we grant Waste Coal's petition for discretionary review,
vacate the judge's default order, and remand this matter for proceedings
consistent with this order.

Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner