Conaway Mining Company, LLC (Commission decision, September 14, 2012)

Plain-English summary

Conaway Mining defaulted after the Commission did not receive an answer to the Secretary's penalty petition. Conaway said it had timely answered and learned of the default only after agreeing to settle the case. The Secretary did not oppose reopening, and her representative confirmed receiving Conaway's answer before later filing a settlement motion. The Commission reopened the proceeding, vacated the default order, and remanded the case for further action.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 823(d); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The default order was vacated, and the case was remanded to the Chief Administrative Law Judge.
• Key point: A default may be reopened when the operator timely served its answer on the Secretary and the parties later reached a settlement.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

September 14, 2012

SECRETARY OF LABOR,                                

MINE SAFETY AND HEALTH                       

ADMINISTRATION (MSHA)   

v.

CONAWAY MINING COMPANY, LLC 

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Docket No. VA 2010-593

A.C. No. 44-07082-230421-01

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 January 4, 2012, the Commission received from Conaway Mining Company, LLC (“Conaway”) 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 Conaway’s failure to answer the Secretary’s November 9, 2010 Petition for Assessment of Civil Penalty. The Commission did not receive Conaway’s answer within 30 days, so the default order became effective on June 6, 2011.

Conaway asserts that it timely answered the petition on December 3, 2010. Conaway further states that it did not know it was placed in default until after it agreed to a settlement in this case. The Secretary does not oppose the request to reopen, and notes that the Conference Litigation Representative (“CLR”) received Conaway’s answer to the petition on December 16, 2010. The CLR also notes that she filed a motion to approve settlement with the Commission on December 7, 2011. The record shows that the Show Cause Order was delivered on May 20, 2011.

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 Conaway’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, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Sam Blankenship, Owner

Conaway Mining Company, LLC

120 Sprint Drive

Blountville, TN 37617

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