Maymead Materials, Inc. (Commission decision, April 3, 2013)

Plain-English summary

Maymead Materials defaulted even though it had answered the penalty petition on time and later sent MSHA another answer in response to the show-cause order. MSHA's representative confirmed receipt and had also filed a motion to approve settlement. The Secretary did not oppose reopening. In the interest of justice, the Commission vacated the default and remanded the case.

Decision snapshot

• Governing authority: 30 U.S.C. § 823(d); 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.
• Key point: Documented timely answers received by MSHA supported reopening the defaulted case.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 3, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

MAYMEAD MATERIALS, INC. 

:

:

:

:

:

:

:

:

:

Docket No. SE 2011-251-M

A.C. No. 40-00071-239925

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 March 22, 2012, the Commission received from Maymead Materials, Inc. (“Maymead”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On May 6, 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 Maymead’s perceived failure to answer the Secretary’s February 10, 2011 Petition for Assessment of Civil Penalty. The Commission did not receive Maymead’s answer within 30 days, so the default order became effective on June 6, 2011.

Maymead asserts that it timely answered the petition on March 9, 2011, and encloses a copy stamped by MSHA as received on March 16, 2011. Maymead further states that it sent MSHA another copy of its answer, as a response to the Show Cause Order. The Secretary does not oppose the request to reopen, and notes that the Conference Litigation Representative (“CLR”) received Maymead’s answer to the Show Cause Order, dated May 30, 2011. The CLR also notes that he filed a motion to approve settlement with the Commission on March 28, 2012.

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 Maymead’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/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

David W. Yates, Esq.

Maymead Materials, Inc.

P.O. Box 911

Mountain City, TN 37683

[email protected]

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