Cecil Kilmer Flagstone (Commission decision, May 17, 1999)

Plain-English summary

Cecil Kilmer Flagstone defaulted after failing to answer the Secretary's penalty petition and a show-cause order, and the Judge assessed the proposed $1,200 penalty. The company later sent the Commission a letter saying that it had mailed a response to the Department of Labor's Regional Solicitor's Office, admitting the violations but contesting the penalty amount. The Commission treated the letter as a late petition for discretionary review, excused the late filing, and reopened the proceeding under Rule 60(b)(1). It remanded the matter to the Judge to determine whether final relief from default was warranted.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The default proceeding was reopened and remanded to the Judge for a determination on final relief.
• Key point: The Commission reopened this default proceeding in the interest of justice because it could not evaluate Kilmer's position on the existing record, then sent the case back to the judge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1730 K STREET N.W., 6TH FLOOR

WASHINGTON, D.C. 20006

May 17, 1999

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 99-16-M
: A.C. No. 36-08739-05502 9BK
CECIL KILMER FLAGSTONE
:

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On February 25, 1999, Chief Administrative Law Judge Paul Merlin issued an Order of Default to Cecil Kilmer Flagstone ("Kilmer") for failing to answer the petition for assessment of penalty filed by the Secretary of Labor on November 19, 1998, or the judge's Order to Respondent to Show Cause issued on January 14, 1999. The judge assessed the civil penalty of $1,200 proposed by the Secretary.

On April 29, 1999, the Commission received a letter from Kilmer asserting that, on December 15, 1998, it had sent a letter answering the Secretary's petition for assessment of penalty. Mot. at 1. The December 15 letter, which Kilmer enclosed along with its motion, was addressed and sent to the Department of Labor's Regional Solicitor's Office in Geneva, New York. The December 15 letter also admits the two alleged violations of mandatory safety standards, but contests the amount of the penalty proposed.

The judge's jurisdiction in this matter terminated when his decision was issued on February 25, 1999. 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); 29 C.F.R. § 2700.70(a). The Commission received Kilmer's letter on April 29, 1999, after the judge's default order had become a final decision of the Commission.

Relief from a final Commission judgment or order is available to a party under Fed. R. Civ. P. 60(b)(1) in circumstances such as mistake, inadvertence, or excusable neglect. F. W. Contractors, Inc., 17 FMSHRC 247, 248 (Mar. 1995); see 29 C.F.R. § 2700.1(b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of applicable Commission rules). On the basis of the present record, we are unable to evaluate the merits of Kilmer's position. In the interest of justice, we reopen the proceeding, treat Kilmer's letter as a late-filed petition for discretionary review requesting relief from a final Commission decision, and excuse its late filing. See F. W. Contractors, 17 FMSHRC at 248. We remand this matter to the judge, who shall determine whether final relief from default is warranted. See id.

Mary Lu Jordan, Chairman

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Theodore F. Verheggen, Commissioner

Robert H. Beatty, Jr., Commissioner

Distribution

Cecil Kilmer, Owner
Cecil Kilmer Flagstone
RR #1, Box 1130
Nicholson, PA 18446

Troy Leitzel, Esq.
Office of the Solicitor
U.S. Department of Labor
Gateway Bldg., Rm. 14480
3535 Market St.
Philadelphia, PA 19104

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin Federal Mine Safety & Health Review Commission 1730 K Street, N.W., Suite 600 Washington, D.C. 20006