Flippy Coal Company, Inc.

Plain-English summary

Flippy Coal failed to answer a civil-penalty petition and a show-cause order, so the ALJ entered a default order assessing $1,486 in proposed penalties. The company later sent an explanation to the Commission, apparently believing it should respond to the Department of Labor rather than the Commission. The Commission treated the letter as a timely petition for discretionary review, vacated the default order, and remanded for the judge to determine whether relief from default was appropriate.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.5(b), 2700.28, and 2700.65(c).
• Outcome: The default order assessing $1,486 was vacated and the matter was remanded for a determination on relief from default.
• Key point: A small operator's mistaken filing with the Labor Department may warrant discretionary review of a default when the response was otherwise timely.

Full text (FMSHRC public release)

CCASE:
MSHA V. FLIPPY COAL
DDATE:
19900328
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             March 28, 1990

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

   v.           Docket No. VA 90-8

FLIPPY COAL COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982), Commission
Chief Administrative Law Judge Paul Merlin issued an Order of Default on
March 9, 1990, finding Flippy Coal Company, Inc. ("Flippy") in default for
failure to answer the Secretary of Labor's civil penalty petition and the
judge's order to show cause. The judge assessed civil penalties in the
amount of $1,486 as proposed by the Secretary of Labor. For the reasons
that follow, we vacate the default order and remand the case for further
proceedings.

On March 14, 1990, Flippy's bookkeeper wrote a letter to this

Commission stating that an attached letter explaining why "there should be
no penalty" had been sent to the wrong address. The attachment, a letter
from Flippy's president dated February 15, 1990, and addressed to the
Department of Labor's "MSHA Civil Penalty Compliance Office" in Arlington,
Virginia, contains a short and plain statement of the reasons why Flippy
disagrees with a roof support violation and a roof plan violation alleged
by the Secretary. Flippy's letter of March 14, 1990, was received by the
Commission on March 16, 1990.

Page 2

 The judge's jurisdiction over the case terminated when his decision

was issued. 29 C.F.R. $ 2700.65(c). We are treating Flippy's March 14
letter as a timely filed petition for discretionary review because it was
received within 30 days of the judge's decision. E.g. Patriot Coal Co.,
9 FMSHRC 382 (March 1987). The petition is granted.

Page 3

~392
The record discloses that on July 11, 1989, and on August 4 and 10,
1989, inspectors of the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued seven citations and one order to Flippy
alleging violations of various safety regulations. Upon preliminary
notification by MSHA of the civil penalties proposed for these alleged
violations, Flippy's president filed a "Blue Card" request for a hearing
before this independent Commission. On December 12, 1989, counsel for
the Secretary filed a proposal for penalty assessments, which was served
by mail on Flippy. When no answer to the penalty proposal was filed, the
judge, on January 22, 1990, issued a show cause order directing Flippy
to file an answer within 30 days or show good reason for the failure to
do so. As noted, Flippy's president mailed an answer to the Secretary on
February 15, 1990. Under the Commission's rules of procedure, the party
against whom a penalty is sought must file an answer with the Commission
within 30 days after service of the proposal for penalty. 29 C.F.R.
$ 2700.5(b) & .28.

 Flippy appears to be a small coal company proceeding without benefit

of counsel. In conformance with the standards set forth in Fed. R. Civ. P.
60(b)(1), the Commission has previously afforded such a party relief where
it appears that the party's failure to respond to a judge's order and the
party's default are due to inadvertence or mistake. See, e.g., Kelley
Trucking Co., 8 FMSHRC 1867 (December 1986); Patriot Coal Co., 9 FMSHRC 382
(March 1987). Flippy may have confused the roles of this independent
Commission and the Department of Labor in this adjudicatory proceeding.
As noted, Flippy's Answer was apparently sent to the Department of Labor
within the time provided in the judge:s order to show cause. In light of
these considerations, we believe that the operator should have the
opportunity to present its position to the judge. E.g., Amber Coal Co.,
11 FMSHRC 131-32 (February 1989).

Page 4

~393
For the foregoing reasons, the judge's default order is vacated
and the matter is remanded to the judge, who shall determine whether
final relief from default is appropriate. See, e.g., Doug Connelly Sand
& Gravel, 9 FMSHRC 385 (March 1987).

Distribution

Ruby H. Cyphers
Flippy Coal Company
106 Suffolk Avenue
Richlands, Virginia 24641

Javier I. Romanach, Esq.
Dennis D. Clark. Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006