Billington Contracting, Inc.

Plain-English summary

Billington Contracting asked the Commission to reopen three penalty cases that had become final after it failed to answer the Secretary's petitions. The company filed its reopening motion more than one year after the default orders became effective. The Commission explained that motions based on mistake, inadvertence, or excusable neglect must be filed within one year under the Rule 60(b) framework used for reopening requests. Because the motion was untimely, the Commission denied it with prejudice.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a); 30 U.S.C. § 823(d)(1)
• Outcome: The motion to reopen three final default orders was denied with prejudice.
• Key point: A reopening motion based on mistake or excusable neglect is untimely when filed more than one year after the final order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

January 3, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

BILLINGTON CONTRACTING, INC.

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Docket No. LAKE 2010-81-M
A.C. No. 21-03031-197296

Docket No. LAKE 2010-122-M
A.C. No. 21-03031-200438-01

Docket No. LAKE 2010-123-M
A.C. No. 21-03031-200438-02

BEFORE: Jordan, Chairman; Young 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 June 20, 2012, the Commission received from Billington
Contracting, Inc. (“Billington”) a motion seeking to reopen three penalty assessment proceedings
and relieve it from the default orders entered against it.

On March 14 and 16, 2011, Chief Administrative Law Judge Lesnick issued three Orders
to Show Cause which by their terms became Default Orders if the operator did not file an answer
within 30 days. These Orders to Show Cause were issued in response to Billington’s failure to
answer the Secretary’s March 18, 2010 Petitions for Assessment of Civil Penalty. The
Commission did not receive Billington’s answers within 30 days, so the default orders became
effective on April 14 and 18, 2011.

The judge’s jurisdiction in these matters 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 orders here have become final
decisions 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).

Under Rule 60(b) a motion shall be made within a reasonable time, and for reasons of
mistake, inadvertence, or excusable neglect under subsections (1), (2), and (3) of the rule, not
more than one year after the judgment, order, or proceeding was entered or taken. This motion to
reopen was filed more than one year after the assessments became final orders. Therefore,
Billington’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

Accordingly, we deny its motion with prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

David J. Malban

Billington Contracting, Inc.

505 Lonsdale Bldg.

302 West Superior St.

Duluth, MN 55802

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710