Secretary of Labor v. Bee B&B, LLC (Commission decision, October 2, 2020)

Plain-English summary

A Blackjewel representative filed motions to reopen four defaulted penalty cases involving Bee B&B, Reliant Contracting, and Pasco Services. The filings did not explain his relationship to those operators or establish his authority to represent them. The Secretary did not oppose reopening, and the Commission conditionally granted the motions. It required the representative or the operators to explain the relationship and seek any necessary permission within 30 days. Without that filing, the conditional relief would lapse and the reopening motions would be denied with prejudice.

Decision snapshot

• Cited authority: None
• Outcome: Four reopening motions were conditionally granted, subject to proof of the representative's authority within 30 days.
• Key point: A non-attorney representative had to establish his relationship to the operators before the conditional reopening would become effective.

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.

BEE
B&B, LLC

and

RELIANT
CONTRACTING, LLC

and

PASCO SERVICES, LLC                              

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Docket
No. KENT 2018-0276

A.C.
No. 15-15215-462060

Docket
No. KENT 2018-0327

A.C.
No. 15-15215-466282

Docket
No. KENT 2018-0334

A.C.
No. 15-16855-583

Docket No. VA 2018-0142

A.C. No. 44-03088-467377

BEFORE: 
Rajkovich, Chairman; Althen and Traynor, Commissioners

ORDER

BY
THE COMMISSION:

A representative of
Blackjewel, LLC (“Blackjewel”) has filed motions to reopen four penalty assessment proceedings and to relieve the operators in those proceedings from Default Orders issued to Bee B&B, LLC (“Bee B&B”) (KENT 2018-0276 and 2018-0327), Reliant Contracting, LLC (“Reliant”)(KENT 2018-0334), and Pasco Services, LLC (“Pasco”)(VA 2018-0142) [1] in the above-captioned case.

Between
September 18 and October 16, 2018, the Chief Administrative Law Judge issued Orders to Show Cause in response the operators’ perceived failure to answer the Secretary of Labor’s Petitions for Assessment of Civil Penalty in these four dockets. By their terms, the Orders to Show Cause were deemed Default Orders between October 19 and December 4, 2018, when it appeared that the operators had not filed answers within 15 days.

As a threshold matter, the motions do not make clear the relationship between Blackjewel, its representative, Mr. Jacobs, and the three operators whose motions are addressed in this order. If Mr. Jacobs is an owner, partner, officer, or employee of the operators, he is permitted to represent them pursuant to Commission Procedural Rule 3(b)(3). If not, he may be permitted to represent the operators with the permission of the Commission, pursuant to Commission Procedural Rule 3(b)(4).

The Secretary has not opposed reopening, and the context suggests there may be an ongoing relationship among these parties, Mr. Jacobs, and Blackjewel. But we were given no facts supporting that relationship when the motions were filed. We therefore grant the motions to reopen conditionally, and we direct either Mr. Jacobs or the parties themselves to file a motion explaining the relationship between Mr. Jacobs and the operators named in this order and seeking permission to have Mr. Jacobs represent the operators in reopening the motions. [2]

Permission shall be granted
retroactively to the dates the original motions were filed, unless the Secretary objects and he demonstrates that permitting said representation would be improper. [3] If the motion directed by this order is not filed within 30 days, our conditional grant will lapse and these motions to reopen will be deemed denied with prejudice. [4]

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ William I.
Althen

William I.
Althen, Commissioner

/s/ Arthur R.
Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution
(by e-mail):

Joseph
G. Jacobs

Representative

Blackjewel,
L.L.C.

[email protected]

Emily Toler
Scott ,
Esq.

Office
of the Solicitor

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

[email protected]

[1]
The four
motions addressed in this order were filed by the same operator and rely upon the same rationale and common facts as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we hereby consolidate these four dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.

[2] If Mr. Jacobs
is an owner, officer, partner, or employee of any or all of the operators, a simple explanation of that relationship will be sufficient, without a motion for permission to represent any operators he would be permitted to represent under Commission Procedural Rule 3.

[3]
There is
an additional problem in KENT 2018-0276. Bee B&B paid the penalty in that docket in full on the same day the motion to reopen it was filed. Any motion made in response to this order must thus explain why this motion is not moot.

[4] Because more
than one year has elapsed since the orders in these matters became final, a new or amended motion that does not address the representation issue will be denied as timely. See Fed. R. Civ. P. 60(c)(1).