Secretary of Labor v. North American Millwright Services, Inc. (Commission decision, November 18, 2020)

Plain-English summary

North American Millwright Services defaulted after it did not answer the Secretary's penalty petition or the ALJ's show-cause order. The operator sought reopening about 30 days after the penalties became delinquent and later paid the assessment in full. The Secretary did not oppose reopening but urged the company to take its obligations seriously. The Commission found that the timing, payment, and non-opposition demonstrated good faith, vacated the default order, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1)-(2); 29 C.F.R. §§ 2700.1(b), 2700.69(b), 2700.70(a)
• Outcome: The default order was vacated and the case was remanded.
• Key point: Promptly seeking relief after delinquency and paying the assessment supported a finding of good faith.

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.

NORTH
AMERICAN MILLWRIGHT SERVICES, INC.

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Docket
No. YORK 2019-0010

A.C.
No. 18-00019-476365 N492

BEFORE:  Rajkovich,
Chairman; Althen and Traynor, 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 May 7, 2019, the Commission received from North American Millwright Services, Inc. (“Millwright”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
February 15, 2019, the Chief Administrative Law Judge issued an Order to Show Cause in response to Millwright’s perceived failure to answer the Petition for Assessment of Civil Penalty, mailed by the Secretary of Labor on December 7, 2018. By its terms, the Order to Show Cause was deemed a Default Order on March 4, 2019, when it appeared that the operator had not filed an answer within 15 days.

The penalties became delinquent on April
4, 2019, but the operator paid the assessment in full on August 15, 2019. The Secretary does not oppose the request to reopen, but requests that Millwright, having contested the penalty at issue, take its further obligations seriously.

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 Millwright’s request and the
Secretary’s response, we find that Millwright’s request to reopen, filed approximately 30 days after the penalties became delinquent, its payment of the penalty assessment, and the Secretary’s non-opposition, demonstrate the operator’s good faith, and merit reopening of the case. 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/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Commissioner

Distribution (e-mail):

James
Russell

CFO/COO,
North American Millwright

[email protected]  

Emily
T. Scott, Esq.

Office
of the Solicitor

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

[email protected]