Secretary of Labor v. Iron Mountain Quarry, LLC

Plain-English summary

Iron Mountain Quarry did not answer a penalty petition, and an ALJ show-cause order appeared to convert into a default. The operator and its counsel had no record of receiving the petition or later documents, and the Secretary could not provide proof of delivery. The Commission found that the show-cause order was never served, so it did not produce a final default order. It denied the reopening motion as moot and remanded the still-active case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1)-(2); 29 C.F.R. §§ 2700.1(b), 2700.69(b), 2700.70(a)
• Outcome: The reopening motion was denied as moot, and the case was remanded.
• Key point: A show-cause order that was never served could not create the final default the operator sought to reopen.

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.                                              
:         Docket No. WEST 2019-0082

:         A.C. No. 45-03175-476571

IRON MOUNTAIN QUARRY, LLC               :

:

BEFORE: Rajkovich, Chairman; Althen and Traynor,
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 June 21, 2019, the Commission received from
Iron Mountain Quarry, LLC (“Iron Mountain”) a motion seeking to reopen a
penalty assessment proceeding and relieve it from the Default Order entered
against it.

On February
19, 2019, the Chief Administrative Law Judge issued an Order to Show Cause in response
to Iron Mountain’s failure to answer the Secretary of Labor’s December 21, 2018
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause
was deemed a Default Order on March 7, 2019, when it appeared that the operator
had not filed an answer within 15 days.

The
operator states that when it filed its notice of contest it provided that its
counsel, Erik Laiho, should be contacted for all matters related to the
contest. Neither the operator nor its counsel have any record of receiving any
documents from MSHA after filing its contest. It also notes that it had been
having problems with postal deliveries for at least a year surrounding this
matter. The Secretary did not provide tracking information or proof that the
petition was delivered to the operator. The Secretary does not oppose the
motion to reopen.

Iron
Mountain asserts that it did not receive the Petition for Assessment of Civil
Penalty. It states that after it did not receive any notice of further
proceedings following its notice of contest, it reached out to the MSHA
Assessment’s office and learned on May 23, 2019, that it was in default status.
After an internal investigation, the operator could not find any record that
the petition had been received. Additionally, Iron Mountain states that it has
made multiple complaints to the U.S. Postal Service because of inconsistent
mail delivery over the course of a year. There is no proof that the Petition
was delivered to the operator. The Secretary does not oppose the request to
reopen, but urges the operator to take steps to ensure that future penalty
contests are timely filed.

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 Iron Mountain’s request and the Secretary’s response, and the record
in this case, we find that the Order to
Show Cause did not result in a final order of default because it was never
served on the operator. Accordingly, the operator’s motion is denied as moot,
and 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/
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:

Erik M. Laiho

Davis Grimm Payne & Marra

701 Fifth Ave., Suite 4040

Seattle, WA 98104

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

Division of Mine Safety and
Health

201 12th Street South, Suite
401

Arlington, VA 22202-5450

[email protected]

Thomas J. O’Donnell, Jr.

U.S. Department of Labor,
MSHA

1030 London Drive, Suite 400

Birmingham, AL 35211

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]

Chief Administrative Law
Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]