Forrest Aggregate

Plain-English summary

Forrest Aggregate asked the Commission to reopen two penalty cases after unanswered show-cause orders became defaults. The operator said it had requested a conference and spoke several times with an MSHA paralegal, who said someone would contact it, but no one did before a Treasury bill arrived. The Secretary did not oppose reopening and reported that the paralegal had not forwarded the cases to an attorney. The Commission vacated both defaults in the interest of justice and remanded the proceedings. It required Forrest to answer the show-cause orders within 30 days.

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 defaults were vacated, the cases were remanded, and Forrest was ordered to answer within 30 days.
• Key point: An operator's reliance on promised agency follow-up can support reopening when the agency file confirms that the matter was not forwarded for action.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 22, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

FORREST AGGREGATE

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Docket No. LAKE 2010-19-M
A.C. No. 20-02777-196629-01

Docket No. LAKE 2010-20-M
A.C. No. 20-02777-196629-02

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 December 15, 2011, the Commission received from
Forrest Aggregate (“Forrest”) a motion seeking to reopen two penalty assessment proceedings
and relieve it from the orders of default entered against it.

On March 14, 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 an answer
within 30 days. These Orders to Show Cause were issued in response to Forrest’s failure to
answer the Secretary’s February 16, 2010 Petitions for Assessment of Civil Penalty. The
Commission did not receive Forrest’s answer within 30 days, so the orders of default became
effective on April 14, 2011.

Forrest asserts that it had requested a hearing conference, and had several conversations
with a paralegal from the Department of Labor, Mine Safety and Health Administration
(“MSHA”). During their last conversation on May 11, 2011, the paralegal told Forrest that
someone would be in contact with it in the next few weeks, but Forrest was not contacted again
until it received a bill from the U.S. Department of Treasury.

The Secretary does not oppose the request to reopen. However, the Secretary notes that
the operator did not file an answer to the assessment petitions or the show cause orders. The
Secretary has been informed by the Denver Regional Office Attorney that the case file indicates
that the paralegal did not forward this case to an attorney to contact Forrest.

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 Forrest’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding 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. Forrest shall file an Answer
to the Show Cause Orders within 30 days of the date of this order.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

William Forrest

Forrest Aggregate

200 East Sutton Rd.

P. O. Box 439

Metorma, MI 48455

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