Opportunity Trucking, Inc.

Plain-English summary

An administrative law judge entered a default order against Opportunity Trucking after the company did not answer the Secretary’s penalty proposal or the judge’s order to show cause. The judge assessed the proposed $800 penalty. The company then filed a motion explaining that its owner believed an answer had been filed through counsel. The Commission treated the motion as a timely petition for discretionary review, vacated the default order, and sent the matter back to the judge to decide whether relief from default was warranted.

Decision snapshot

• Governing authorities: 30 U.S.C. § 823(d)(1) and § 823(d)(2); 29 C.F.R. § 2700.69(b) and § 2700.70(a)
• Outcome: The default order was vacated and the matter was remanded to the ALJ.
• Key point: A timely motion to set aside an ALJ default may be treated as a petition for discretionary Commission review.

Full text (FMSHRC public release)

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

                                   September 11, 1995

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 95-122
:
OPPORTUNITY TRUCKING, INC. :
:

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) (AMine Act@ or AAct@). On August 2, 1995, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Opportunity Trucking, Inc. (AOpportunity@)
for failing to answer the proposal for assessment of penalty filed by the Secretary of Labor on
March 17, 1995, or the judge=s Order to Respondent to Show Cause issued on May 15, 1995.
The judge assessed the civil penalties of $800 proposed by the Secretary.

     On September 1, 1995, the Commission received from Opportunity a Motion to Set Aside

Default. Opportunity=s counsel states that Opportunity=s owner and president believed he had
filed his answer with counsel for the Secretary. The official file does not contain a copy of such
answer. On September 7, the Commission received the Secretary=s opposition to the motion, in
which he asserts that Opportunity failed to set forth grounds justifying relief under Fed. R. Civ. P.
60(b).

     The judge's jurisdiction in this matter terminated when his decision was issued on

August 2, 1995. 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); 29 C.F.R. ' 2700.70(a). If the
Commission does not receive a petition or direct review on its own motion within the 30-day
period, the judge=s decision becomes a final decision of the Commission 40 days after its issuance.

Page 2

30 U.S.C. ' 823 (d)(1).

    The Commission has looked to Fed. R. Civ. P. 60(b) in evaluating whether relief from a

final Commission order is appropriate. See, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991); 29 C.F.R. ' 2700.1(b) (Federal Rules of Civil Procedure apply Aso far as practicable@
in the absence of applicable Commission rules). Here, Opportunity=s motion was received within
the 30-day time period. We deem Opportunity=s motion to be a timely filed petition for
discretionary review, which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC
1130 (September 1988). Accordingly, the judge=s order has not become a final Commission
decision, and we do not consider whether Opportunity=s request justifies relief under Fed. R. Civ.
P. 60(b).

    On the basis of the present record, we are unable to evaluate the merits of Opportunity=s

position. In the interest of justice, we vacate the judge=s default order and remand this matter to
the judge, who shall determine whether relief from default is warranted. See Amber Coal Co.,
11 FMSHRC 131, 132-33 (February 1989).

                                                  Mary Lu Jordan, Chairman


                                                  Joyce A. Doyle, Commissioner


                                                  Arlene Holen, Commissioner


                                                  Marc Lincoln Marks, Commissioner