CG&G Trucking, Inc.

Plain-English summary

CG&G Trucking failed to answer the Secretary's penalty proposal and a later show-cause order, so the ALJ entered a default order and assessed a $400 penalty. The company later asked the Commission to vacate the default, explaining that it had filed a Blue Card hearing request but then heard nothing until receiving the default order. The Commission treated the letter as a request for relief from a final decision and a late petition for discretionary review. It reopened the matter, vacated the default order, and remanded it so the ALJ could determine whether final relief from default was appropriate.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.28 and 2700.70(a); 30 U.S.C. §§ 823(d)(1), 823(d)(2)(A), and 823(d)(2)(B)
• Outcome: The default order was vacated and the matter was remanded for further proceedings.
• Key point: A late request may be considered for relief from default when the operator offers a cognizable explanation for failing to respond and the record needs further factual development.

Full text (FMSHRC public release)

                       February 1, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 92-574

                                          :

CG&G TRUCKING, INC. :

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

                                     ORDER

BY THE COMMISSION:

 This proceeding arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. 801 et seq. (1988)(the "Mine
Act"). Chief Administrative Law Judge Paul Merlin issued an
Order of Default on November 19, 1992 to CG&G Trucking, Inc.
("CG&G") for failure to answer the Secretary of Labor's proposal
for penalty and the judge's subsequent order to show cause. The
judge assessed a civil penalty of $400 as proposed by the
Secretary. On December 28, 1992, the Commission received a
letter from CG&G dated December 19, requesting that the
Commission vacate the default order. In support of its request,
CG&G states that, in response to the Secretary's notification of
proposed penalty, it filed a "Blue Card" request for a hearing
but heard nothing further about the matter until it received the
default order. For the reasons that follow, we reopen this
proceeding, vacate the default order, and remand this case for
further proceedings.

 It appears from the record that CG&G, a small operator

acting without counsel, filed a Blue Card request for a hearing
in this matter in response to the Secretary's notification of
proposed assessment of penalty. However, CG&G did not file an
answer to the Secretary's subsequent proposal for penalty as was
required in order to contest that penalty proposal. See 29
C.F.R. 2700.28. Accordingly, on September 10, 1992, Judge
Merlin issued an Order to Respondent to Show Cause, directing
CG&G to file an answer or be found in default. CG&G did not
respond to the show cause order, which was returned to the
Commission unclaimed.

 Under the Mine Act and the Commission's procedural rules,

relief from a judge's decision may be sought within 30 days of
its issuance by filing a petition for discretionary review with
the Commission. 30 U.S.C. 823(d)(2)(A); 29 C.F.R.
2700.70(a). CG&G 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 these circumstances, we deem CG&G's letter of December

19 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 Commission judgment or order on the
basis of mistake, inadvertence, surprise or excusable neglect is
available to a party under Fed. R. Civ. P. 60(b)(1). See 29
C.F.R.
2700.1(b)(Federal Rules of Civil Procedure apply, "so far a
practicable" and "as appropriate," in absence of applicable
Commission rules). See, e.g., Danny Johnson v. Lamar Mining Co.,
10 FMSHRC 506, 508 (April 1989). See also Lloyd Logging, Inc.,
13 FMSHRC 781, 782 (May 1991).

 The Commission has indicated that "under appropriate

circumstances, a genuine problem in communication or with the
mail may justify relief from default." Middle States Resources,
Inc., 10 FMSHRC 1130, 1131 (September 1988), quoting Con-Ag,
Inc., 9 FMSHRC 989, 990 (June 1987). See also Ten-A-Coal
Company, 10 FMSHRC 1132, 1133 (September 1988). The record does
not contain sufficient information to permit us to rule with
respect to CG&G's claim. CG&G has, however, offered a cognizable
explanation of its failure to respond to the judge's show cause
order. In the interest of justice, we will permit CG&G the
opportunity to present its position to the judge, who shall
determine whether final relief from default is appropriate under
the circumstances presented. Cf. Perry Drilling Co., 9 FMSHRC
379, 380 (March 1987).

 Accordingly, we reopen this matter, vacate the judge's

default order, and remand this matter for proceedings consistent
with this order. CG&G is reminded to serve counsel for the
Secretary with copies of its filings in this proceeding. 29
C.F.R. 2700.7(a).

                          Arlene Holen, Chairman


                          Richard V. Backley, Commissioner


                          Joyce A. Doyle, Commissioner


                          L. Clair Nelson, Commissioner