De Atley Company, Inc.

Plain-English summary

De Atley Company failed to answer the Secretary's civil-penalty petition and a show-cause order, so the chief judge entered a default order assessing a $1,019 penalty. The company later said it had reached a settlement, but its predecessor left before signing the agreement, and the signed agreement and payment were sent late. The Commission treated the company's letter as a late petition for discretionary review, excused the late filing, and reopened the proceeding. It remanded the matter to the judge to decide whether relief from the default judgment was warranted.

Decision snapshot

• Cited provision(s): 29 C.F.R. § 2700.69(b); 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a); 30 U.S.C. § 823(d)(1); 29 C.F.R. § 2700.1(b)
• Outcome: The Commission reopened the proceeding, excused the late filing, and remanded for a determination whether relief from default was warranted.
• Key point: The Commission may excuse a late review request and reopen a final default order when the record requires further consideration of possible relief.

Full text (FMSHRC public release)

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

                                       April 17, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 95-512-M
:
DE ATLEY COMPANY, INC. :

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, 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. (1994). On February 7, 1996, Chief Administrative Law Judge Paul
Merlin issued an Order of Default to DeAtley Company, Inc. (“DeAtley”) for its failure to answer
the Secretary of Labor’s petition for assessment of civil penalty or the judge’s December 15,
1995, Order to Respondent to Show Cause. The judge assessed a civil penalty of $1,019.

    In a letter to the judge dated March 16, 1996, DeAtley’s office engineer, Max Jensen,

states that his predecessor contested the penalty and subsequently settled the case with the
Secretary. He explains that, shortly after receiving the settlement papers his predecessor resigned
without having the agreement signed. Jensen asserts that, when he discovered the
unconsummated settlement agreement, he immediately had it signed and mailed to the Secretary
along with payment in full of the stipulated amount. Jensen states that, on February 26, 1996,
DeAtley received a letter from the Secretary acknowledging receipt of the settlement payment but
demanding the balance ($512) of the original penalty. Jensen states he telephoned Matthew
Vadnal, the Secretary’s counsel, to explain why the settlement agreement was returned late and
Vadnal suggested he contact the Commission.

    On April 1, 1996, the Commission received the Secretary’s response to DeAtley’s March

16 letter. The Secretary requests the letter be treated as a request for relief from final judgment.

   The judge’s jurisdiction over this case terminated when his default order was issued on

February 7, 1996. 29 C.F.R. § 2700.69(b). Relief from a judge’s decision may be sought by

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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). 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). DeAtley’s letter
was received by the Commission on March 21, after the judge’s default order had become a final
decision of the Commission.

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

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); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).
On the basis of the present record, we are unable to evaluate the merits of DeAtley’s position. In
the interest of justice, we reopen the proceeding, treat DeAtley’s letter as a late-filed petition for
discretionary review requesting relief from a final Commission decision, and excuse its late filing.
See, e.g., Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 (December 1986). 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




                                           James C. Riley, Commissioner



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