Secretary of Labor v. Green Brothers Gravel Company, Inc. (Commission decision, August 26, 2022)

Plain-English summary

Green Brothers Gravel did not answer the Secretary's penalty petition, and an order to show cause became a default order after 30 days. The operator said pandemic-era service occurred by email and a typographical error in counsel's email address prevented delivery of both the petition and later orders. The Secretary did not oppose reopening. The Commission found that the failure to respond resulted from a clerical error and that Green Brothers moved promptly after discovering it. It vacated the default and remanded the penalty case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The default order was vacated, and the penalty proceeding was reopened and remanded.
• Key point: A documented email-address error and prompt corrective action supported relief from a final default order.

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.

GREEN
BROTHERS GRAVEL

COMPANY,
INC.

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Docket
No. SE 2021-0194

A.C.
No. 22-00650-542085

BEFORE: 
Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On March 30, 2022, the Commission received from Green Brothers Gravel Company, Inc. (“Green Bros.”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
December 21, 2021, the Chief Administrative Law Judge issued an Order to Show Cause in response to Green Bros.’ perceived failure to answer the Secretary of Labor’s October 21, 2021 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on January 20, 2022, when it appeared that the operator had not filed an answer within 30 days.

Green Bros. asserts that, due to servicing
rules in place during the COVID-19 pandemic, MSHA’s petition for Assessment of Civil Penalty was not mailed to the operator but was instead served by email. Due to a clerical oversight, counsel for Green Bros.’ email address contained a typographical error and, as a result, Green Bros. maintains that it did not receive a copy of the Assessment or the Chief Judge’s subsequent Order to Show Cause and Order of Default. The Secretary does not oppose the request to reopen.

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 Green Bros.’ request and the
Secretary’s response, we find that the failure to respond was due to a clerical error and that the operator promptly moved to reopen the case upon discovering the mistake. 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Josh Bernstein

United States
Department of Labor

Office of the
Solicitor

525 S. Griffin
Street, Suite 501

Dallas, Texas
75202

[email protected]

[email protected]

Sarah G. Korwan

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

1045 Bridge Rd.

Charleston, WV
25314

[email protected]

Adele L. Abrams

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

1045 Bridge Rd.

Charleston, WV
25314

[email protected]

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

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

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and Health
Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]