Rare Red Rock (Commission decision, April 4, 2013)

Plain-English summary

Rare Red Rock defaulted after failing to answer a penalty petition and show-cause order. The company said its owner died shortly before the default became effective, after which its vice president took responsibility for MSHA correspondence and independent counsel was hired. The Secretary did not oppose reopening but raised concern about seven other delinquent cases and urged the operator to contact MSHA. 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: A death-related disruption in handling agency correspondence supported reopening, while other delinquencies still required attention.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

April 4, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

RARE RED ROCK
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:
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:
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:

Docket No. SE
2011-595-M
A.C. No. 01-03273-255745

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 September 18, 2012, the Commission received from Rare Red Rock (“RRR”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On
January 18, 2012, 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 RRR’s failure to answer the Secretary’s July 6, 2011 Petition for Assessment of Civil Penalty. The Commission did not receive RRR’s answer within 30 days, so the default order became effective on February 21, 2012.

RRR
asserts that its owner died on February 15, 2012, and its vice president was then assigned to handle MSHA correspondence. RRR further states that it hired an independent counsel to avoid further deficiencies. RRR enclosed a copy of a delinquency notice dated June 14, 2012, and a collection notice from the Department of Treasury dated September 10, 2012. The Secretary does not oppose the request to reopen. However, the Secretary notes her concern about seven other cases which had become delinquent in 2012. The Secretary urges the operator to contact MSHA to discuss these delinquencies.

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). 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 RRR’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, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Larry Stephens, Vice President

Rare Red Rock

P.O. Box 150

Cusseta, AL 36852

[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