Secretary of Labor v. Bluff City Minerals (Commission decision, October 27, 2016)

Plain-English summary

Bluff City Minerals was defaulted on September 2, 2014 when the Commission's records showed no answer to MSHA's April 25, 2014 penalty petition. Bluff said it had responded to the order to show cause on August 14, 2014 and filed an answer, and the Secretary confirmed receiving that answer, but there was no indication Bluff ever forwarded it to the Chief Administrative Law Judge. Neither side realized what had happened: the parties kept litigating until June 15, 2015, when Judge Alan Paez's law clerk told them the file showed the case administratively closed and the penalty paid. Bluff said it may have paid the penalty by mistake after a phone call from MSHA about delinquent penalties. The Secretary did not oppose reopening. Applying the Rule 60(b) standard and the rule that default is a harsh remedy, the Commission reopened the proceeding, vacated the default order, and remanded to the Chief Administrative Law Judge.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 2700.69(b) and 30 U.S.C. § 823(d)(1)
• Outcome: Proceeding reopened, default order vacated, and the case remanded to the Chief Administrative Law Judge.
• Key point: Serving an answer on the Secretary is not the same as filing it with the judge, and a default can stand unnoticed for months while both sides continue to litigate.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),       

v.

BLUFF
CITY MINERALS,

:

:

:

:

:

:

:

Docket
No. LAKE 2014-0393-M

A.C.
No. 11-00122-347386

BEFORE:  Jordan,
Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On July 1, 2015, the Commission received from Bluff City Minerals, LLC (“Bluff”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
July 30, 2014, the Chief Administrative Law Judge issued an Order to Show Cause in response to Bluff’s failure to answer the Secretary of Labor’s April 25, 2014 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on September 2, 2014, when it appeared that the operator had not filed an answer with the Judge within 30 days.

Bluff claims that it timely responded to
the Order to Show Cause on August 14, 2014, and filed an answer to the Secretary’s petition. The parties then continued to litigate the case until June 15, 2015, when Administrative Law Judge Alan Paez’s law clerk informed them that the files showed that the case had been administratively closed. The records also indicated that the citation had been paid. Bluff states that it may have inadvertently paid the penalty in response to a phone call from MSHA informing it that penalties were delinquent.

The Secretary does not oppose the
request to reopen and confirms receipt of the timely answer dated August 14, 2014. However, he notes that there is no indication that the operator ever forwarded the answer to the Chief Administrative Law Judge.

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 the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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). 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 will be permitted. See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).

Having reviewed Bluff’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, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Steelman,
Guant & Horsefield

Attn:
Ryan D. Seelke

901
Pine Street, Suite 110

Rolla,
MO 65401

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450