FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 8, 2013

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 July 17, 2012, the Commission received from Hanson Aggregates Southeast, LLC (“Hanson”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On April 19, 2012, 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 Hanson’s failure to answer the Secretary’s September 28, 2011 Petition for Assessment of Civil Penalty. The Commission did not receive Hanson’s answer within 30 days, so the default order became effective on May 21, 2012.

            Hanson asserts that the penalty petition and Order to Show Cause were mailed to the Rougemont Quarry, a small operation with very little staff. Hanson states that employees at the quarry did not understand that they had to forward the penalty petition to its regional corporate office and counsel. In addition, the record indicates that the Show Cause Order was returned to sender due to there being no mail receptacle.

            Hanson’s counsel was contacted by MSHA’s Conference Litigation Representative (“CLR”) on June 6, 2012, and only then received a copy of the penalty petition. The Secretary states that the page with counsel’s name and address was not attached to the original contest package received by the CLR who prepared the penalty petition. On July 11, 2012, the CLR notified Hanson’s counsel that the case was in default. The Secretary does not oppose the request to reopen, but notes that the operator should contact counsel upon receiving MSHA correspondence in order to avoid similar problems in the future. The Secretary also urges the operator to ensure that its address of record is accurate and future mailings can be received at that address.

            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) (“JWR”). 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 Hanson’s request and the Secretary’s response, 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/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

William K. Doran

Ogletree, Deakins, Nash, Smoak & Stewart, PC

1909 K Street, NW, Suite 1000

Washington, DC 20006

william.doran@odnss.com

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., 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710