Secretary of Labor v. Farwest Portable Crushing, Inc. (Commission decision, August 22, 2022)

Plain-English summary

Farwest Portable Crushing was defaulted after the record appeared to show that it had not answered the Secretary's penalty petition or responded to an order to show cause. The operator produced certified-mail receipts showing that it mailed an answer in September 2020 and resent its paperwork in January 2021. Although the envelopes were not returned, Farwest received no delivery signatures, and successful delivery was not achieved until April 2021. The Secretary did not oppose reopening. The Commission credited the documented timely attempts, vacated the default, and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The default order was vacated, and the penalty proceeding was reopened and remanded.
• Key point: Certified-mail records of timely attempted responses supported reopening even though the Commission did not successfully receive them.

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.

FARWEST
PORTABLE CRUSHING,

INC.

:

:

:

:

:

:

:

:

Docket
No. WEST 2020-0362

A.C.
No. 45-02314-515508

BEFORE: 
Traynor, Chair; Althen and Rajkovich, 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 April 1, 2021, the Commission received from Farwest Portable Crushing Inc. (“Farwest”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
January 7, 2021, the Chief Administrative Law Judge issued an Order to Show Cause in response to Farwest’s perceived failure to answer the Secretary of Labor’s August 30, 2020, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on February 6, 2021, when it appeared that the operator had not responded to it within 30 days.

Farwest asserts that it timely filed an
Answer to the Secretary’s Petition. In support of this assertion, Farwest submits a copy of a certified mail receipt, postmarked September 29, 2020, addressed to “MSHA Review Commission” at 1331 Pennsylvania Ave., N.W. Washington, D.C. 20004-1710. The operator asserts further that it also responded to the Judge’s January 7, 2021, Order to Show Cause by resubmitting its paperwork. To support this claim, Farwest submits copies of a certified mail receipt postmarked January 22, 2021, addressed to “MSHA” but sent to the Commission’s address, referenced above. Farwest explains that in both cases it did not receive signature confirmation of receipt, but neither did it receive its envelope back. 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 Farwest’s request and the Secretary’s
response, we find that, although Farwest did not achieve a successful delivery until April 1, 2021, the operator has submitted documentation of its prior attempts to file timely responses to both the Secretary’s Petition and the Judge’s show cause order. 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

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

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Don T. Salka

Farwest Portable
Crushing, Inc.

P.O. Box 1289

Gresham, OR 97030

[email protected]

Donald Horn

Conference
Litigation Representative

991 Nut Tree Road

Vacaville, CA
95687

[email protected]