Memphis Stone & Gravel Company

Plain-English summary

Memphis Stone & Gravel Company asked the Commission to reopen a penalty case after its failure to answer a petition led to a default. The company said it timely responded to the show-cause order and continued negotiating with an MSHA representative, so it did not know a default had taken effect until a delinquency notice arrived. The Secretary did not oppose reopening and confirmed that the MSHA representative received the answer. The answer did not indicate that it had also been sent to the Commission as required. The Commission vacated the default in the interest of justice and remanded the case for further proceedings.

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: The default order was vacated and the penalty proceeding was remanded to the Chief ALJ.
• Key point: A timely response sent to MSHA, combined with ongoing settlement discussions, can support reopening even when the Commission did not receive the answer.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 25, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

MEMPHIS STONE & GRAVEL COMPANY

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Docket No. SE 2010-1104-M

A.C. No. 22-00756-227671

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 November 1, 2011, the Commission received from
Memphis Stone & Gravel Company (“Memphis”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the order of default entered against it.

On May 10, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms became an Order of Default if the operator did not file an answer within
30 days. This Order to Show Cause was issued in response to Memphis’ failure to answer the
Secretary’s October 1, 2010 Petition for Assessment of Civil Penalty. The Commission did not
receive Memphis’ answer within 30 days, so the order of default became effective on June 10,
2011.

Memphis asserts that it timely responded to the Show Cause Order on May 20, 2011.
Memphis further states that it was in negotiations with a Conference Litigation Representative
(“CLR”) in June 2011, and was unaware that a default order had been issued, until it received
MSHA’s delinquency notice, dated October 5, 2011.

The Secretary does not oppose the request to reopen and notes that the CLR indicated that
he received a copy of the answer. However, the answer does not indicate that it was also sent to
the Commission, as instructed in the penalty petition.

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Nichelle Young, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

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