Secretary of Labor v. Peninsula Topsoil (Commission decision, February 4, 2015)

Plain-English summary

Peninsula Topsoil asked the Commission to reopen a penalty case that defaulted after it did not answer the Secretary's petition or the Chief ALJ's show-cause order. The operator attributed the failure to a miscommunication or misunderstanding of Commission procedures. The Secretary did not oppose reopening but noted that the show-cause order clearly required a response within 30 days and cautioned that future motions might be opposed. Treating default as a harsh remedy and acting in the interest of justice, the Commission vacated the default and remanded the case for further proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 823(d)
• Outcome: The default order was vacated and the penalty case was remanded.
• Key point: A procedural misunderstanding may support reopening, but operators remain responsible for responding to clear show-cause deadlines.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

PENINSULA TOPSOIL

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Docket No.

A.C. No.

WEST 2012-1395-M

45-03599-296395

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On January 8, 2014, the Commission received from Peninsula Topsoil (“Peninsula”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On February 5, 2013, the Chief Administrative Law Judge issued an Order to Show Cause in response to Peninsula’s failure to answer the Secretary of Labor’s October 10, 2012 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order on March 8, 2013, when the operator did not file an answer within 30 days.

Peninsula asserts that it failed to send a timely answer due to a miscommunication or misunderstanding of the Commission’s procedures. The Secretary does not oppose the request, but notes that the Order to Show Cause clearly alerted the operator that it needed to respond to the order within 30 days. The Secretary cautions that he may oppose future motions to reopen penalty assessments.

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 Peninsula’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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner