T.E. Bertagnolli & Associates (Commission decision, June 20, 1995)

Plain-English summary

T.E. Bertagnolli & Associates failed to answer the Secretary of Labor's proposed civil penalties or an order to show cause, and the ALJ entered a default order assessing $9,800 in penalties. The company later said it had responded but had mistakenly mailed its response to a Department of Labor attorney. The Commission treated the company's letter as a timely petition for discretionary review, reopened the proceeding, and remanded it to the judge. The judge was directed to decide whether the company should receive relief from the default.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(1); 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The Commission reopened the proceeding, granted review, and remanded the matter to the judge to determine whether relief from default was warranted.
• Key point: Relief from a final Commission order may be available for mistake, inadvertence, or excusable neglect, but the judge had to assess the merits of the company's request.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

June 20, 1995

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
:
v. : Docket No. WEST 94-681-M
:
T.E. BERTAGNOLLI & ASSOCIATES
:
:

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 801 et seq. (1988). On March 13, 1995, Chief Administrative Law Judge Paul Merlin issued an Order of Default to T.E. Bertagnolli & Associates (\"Bertagnolli\") for its failure to answer the Secretary of Labor's proposal for assessment of civil penalties or the judge's December 22, 1994, Order to Respondent to Show Cause. The judge assessed civil penalties of $9800.

In a letter to the judge dated March 27, 1995, Bertagnolli states that, on October 21, 1994, it had responded to the Secretary's penalty proposal but had inadvertently mailed its response to an attorney in the Office of the Department of Labor's Solicitor in San Francisco, California. It enclosed a copy of that letter, which it states is a \"duplicate\" in all respects except that it is addressed to Judge Merlin.

The judge's jurisdiction over this case terminated when his default order was issued on March 13, 1995. 29 C.F.R. ' 2700.69(b). 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); 29 C.F.R. ' 2700.70(a). Due to clerical oversight, the Commission did not act on the March 27 letter within the statutory period for considering petitions for discretionary review. The judge's default order became a final decision of the Commission 40 days after its issuance. 30 U.S.C. ' 823(d)(1).

Relief from a final Commission judgment or order is available to a party under Fed. R.

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Civ. P. 60(b)(1) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R. ' 2700.1(b) (Federal Rules of Civil Procedure apply \"so far as practicable\" in the absence of applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).

In the interest of justice, we reopen this proceeding and treat Bertagnolli's March 27 letter as a timely filed petition for discretionary review, which we grant. See Cedar Lake Sand & Gravel Co., 15 FMSHRC 2253, 2254 (November 1993). On the basis of the present record, we are unable to evaluate the merits of Bertagnolli's position. We remand the matter to the judge, who shall determine whether final relief from default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

Mary Lu Jordan, Chairman

Joyce A. Doyle, Commissioner

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

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