Brookside Materials, LLC

Plain-English summary

Brookside Materials timely contested a proposed penalty but later defaulted after failing to answer the Secretary's penalty petition at the Commission. Brookside said it received nothing after its original contest until MSHA sent a delinquency notice. The Secretary did not oppose reopening and confirmed that her representative had received Brookside's answer, although the record did not show that Brookside also sent it to the Commission. The Commission reopened the proceeding, vacated the default order, and remanded the case for further proceedings.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 823(d); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The default order was vacated, and the case was remanded to the Chief Administrative Law Judge.
• Key point: A default may be reopened when an operator's answer reached the Secretary but apparently was not also filed with the Commission.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                      

September 14, 2012

SECRETARY OF LABOR,                                

MINE SAFETY AND HEALTH                       

ADMINISTRATION (MSHA)   

v.

BROOKSIDE MATERIALS, LLC 

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Docket No. LAKE 2011-345-M

A.C. No. 33-04592-243327

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On January 23, 2012, the Commission received from
Brookside Materials, LLC (“Brookside”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the default order entered against it.

On June 21, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms became a Default Order if the operator did not file an answer within
30 days. This Order to Show Cause was issued in response to Brookside’s failure to answer the
Secretary’s February 18, 2011 Petition for Assessment of Civil Penalty. The Commission did not
receive Brookside’s answer within 30 days, so the default order became effective on July 21,
2011.

Brookside asserts that it timely contested the proposed assessment, and did not receive
anything since. Brookside encloses a copy of MSHA’s delinquency notice, dated January 5,
2012. The Secretary does not oppose the request to reopen, and notes that the Conference
Litigation Representative received Brookside’s answer to the petition on March 23, 2011.
However, there is no indication on the answer as to whether Brookside sent a copy to the
Commission. The record shows that the Show Cause Order was delivered on June 24, 2011.

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 Brookside’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. 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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jerry Bennett

Brookside Materials, LLC

2409 Johnstown Alexandria Rd

Alexandria, OH 43001

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