Secretary of Labor v. Ames Construction, Inc.

Plain-English summary

Ames Construction asked the Commission to reopen a penalty proceeding after a show-cause order became a default order. Ames said it never received the show-cause order and filed its reopening request six days after the answer deadline. The Secretary did not oppose reopening but asked the company to take its future obligations seriously. The Commission found that the prompt request merited relief, vacated the default, and remanded the case for further proceedings.

Decision snapshot

• Cited authority: None
• Outcome: The default order was vacated, and the penalty proceeding was reopened and remanded.
• Key point: Ames's prompt reopening request supported relief after it said it never received the show-cause order.

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.

AMES
CONSTRUCTION, INC.

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Docket
No. WEST 2019-0353

A.C.
No. 04-04674-491494

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. (2018) (“Mine Act”). On November 4, 2019, the Commission received
from Ames Construction, Inc. (“Ames”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.

On
October 8, 2019, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Ames’ perceived failure to answer the Secretary of Labor’s
July 15, 2019 Petition for Assessment of Civil Penalty. By its terms, the Order
to Show Cause was deemed a Default Order on October 29, 2019, when it appeared
that the operator had not filed an answer within 20 days.        

Ames asserts that it never received the Order
to Show Cause. The Secretary does not oppose the request to reopen, but requests
that Ames, having contested the penalty at issue, take its further obligations
seriously.

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 Ames’ request and the Secretary’s
response, we find that Ames’ request to reopen so soon after the due
date to respond to the Order to Show Cause merits reopening of the case. 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/ 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 (e-mail):

Jeff
Klante

California
Area Safety Manager

391
N. Main Street, Suite 302

Corona,
CA 92880

[email protected]

Emily
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]