Secretary of Labor v. Carson Hill Rock Products (Commission decision, October 27, 2016)

Plain-English summary

Carson Hill Rock Products was hit with a default order after the Commission's records showed no answer to MSHA's March 18, 2014 penalty petition. The Chief Administrative Law Judge issued an order to show cause on June 20, 2014, and it became a default order on July 21, 2014. Carson Hill said it had in fact mailed a timely answer, but sent it to the Secretary's Denver Regional Office. The Secretary confirmed receiving it and confirmed there was no sign the company had copied the Chief Administrative Law Judge, which is why the case appeared unanswered. The company moved to reopen promptly after a June 8, 2015 delinquency notice arrived, and the Secretary did not oppose. Applying the Rule 60(b) standard it uses for these motions, and noting that default is a harsh remedy, the Commission reopened the case and vacated the default order. The matter goes back to the Chief Administrative Law Judge for proceedings on the merits.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 2700.69(b) and 30 U.S.C. § 823(d)(1)
• Outcome: Proceeding reopened, default order vacated, and the case remanded to the Chief Administrative Law Judge.
• Key point: Mailing an answer to the Secretary's regional office does not put it before the Commission, but doing so and then moving promptly once a delinquency notice arrives can be good cause to lift a default.

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.

CARSON
HILL ROCK PRODUCTS

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Docket
No. WEST 2014-389

A.C.
No. 04-04792-335756

BEFORE:  Jordan,
Chairman; Young, 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 August 7, 2015, the Commission received from Carson Hill Rock Products (“Carson Hill”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
June 20, 2014, the Chief Administrative Law Judge issued an Order to Show Cause in response to Clayton’s failure to answer the Secretary of Labor’s March 18, 2014 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on July 21, 2014, when it appeared that the operator had not filed an answer within 30 days.

Carson Hill claims that it sent a timely
answer to the Petition for Assessment of Civil Penalty to the Secretary’s Denver Regional Office. The Secretary confirms this but states that there is no indication that the operator copied the Chief Administrative Law Judge on the correspondence. Furthermore, it appears that the operator promptly sought reopening after receiving a delinquency notice dated June 8, 2015. 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 Carson Hill’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, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Nick
McTague

Mine
Foreman

Carson
Hill Rock Products

4795
Hwy 49

Carson
Hill, CA 95222

Nick
McTague

Mine
Foreman

Carson
Hill Rock Products

P.O.
Box 305

Vallecito,
CA 95251

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450