H.I. Stone and Son, Inc.

Plain-English summary

H.I. Stone and Son defaulted after it did not answer the Secretary's penalty petition. The company acknowledged receiving the show-cause order but said it later settled with MSHA and paid the agreed amount. The Secretary did not oppose reopening for the limited purpose of allowing the judge to consider the settlement motion, and the regional attorney said he had not known about the default. The Commission vacated the default only for settlement review and remanded the case.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 823(d); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The default was vacated for the limited purpose of considering the settlement motion, and the case was remanded.
• Key point: A final default may be reopened on a limited basis when the parties have settled and need the judge to approve their agreement.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                            

September 12, 2012

SECRETARY OF LABOR,                              

MINE SAFETY AND HEALTH                     

ADMINISTRATION (MSHA)

v.

H.I. STONE AND SON, INC.

:

:

:

:

:

:

:

:

:

Docket No. YORK 2010-275-M

A.C. No. 06-00761-220793

BEFORE: Jordan, Chairman; Young and Nakamura, 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. (2006) (“Mine Act”). On March 6, 2012, the Commission received from H.I. Stone
and Son, Inc. (“Stone”) a motion seeking to reopen a penalty assessment proceeding and relieve
it from the default order entered against it.

On October 24, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms became a Default Order if the operator did not file an answer within 30
days. This Order to Show Cause was issued in response to Stone’s failure to answer the
Secretary of Labor’s July 13, 2010 Petition for Assessment of Civil Penalty. The Commission
did not receive Stone’s answer within 30 days, so the default order became effective on
November 24, 2011.

Stone acknowledges that it received the show cause order but states that it reached a
settlement agreement with the Mine Safety and Health Administration (“MSHA”) and paid the
agreed upon amount. The Secretary does not oppose the request to reopen for the limited
purpose of allowing the submission of the Motion to Approve Settlement, filed January 30, 2012.
The Philadelphia Regional Attorney states that he was unaware of the Order to Show Cause and
Order of Default.

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, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. 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 permitted. See Coal Prep. Servs., Inc., 17
FMSHRC 1529, 1530 (Sept. 1995).

Having reviewed Stone’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the default order for the limited purpose of
permitting consideration of the settlement motion. 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/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Chuck Stone

H. I. Stone & Son, Inc.

313 Main Street North

Southbury, CT 06488

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021