FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 22, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On December 15, 2011, the Commission received from Forrest Aggregate (“Forrest”) a motion seeking to reopen two penalty assessment proceedings and relieve it from the orders of default entered against it.

            On March 14, 2011, Chief Administrative Law Judge Lesnick issued two Orders to Show Cause which by their terms became Orders of Default if the operator did not file an answer within 30 days. These Orders to Show Cause were issued in response to Forrest’s failure to answer the Secretary’s February 16, 2010 Petitions for Assessment of Civil Penalty. The Commission did not receive Forrest’s answer within 30 days, so the orders of default became effective on April 14, 2011.

            Forrest asserts that it had requested a hearing conference, and had several conversations with a paralegal from the Department of Labor, Mine Safety and Health Administration (“MSHA”). During their last conversation on May 11, 2011, the paralegal told Forrest that someone would be in contact with it in the next few weeks, but Forrest was not contacted again until it received a bill from the U.S. Department of Treasury.

            The Secretary does not oppose the request to reopen. However, the Secretary notes that the operator did not file an answer to the assessment petitions or the show cause orders. The Secretary has been informed by the Denver Regional Office Attorney that the case file indicates that the paralegal did not forward this case to an attorney to contact Forrest.

            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 Forrest’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Orders of Default. 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. Forrest shall file an Answer to the Show Cause Orders within 30 days of the date of this order.

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Mary Lu Jordan, Chairman

____________________________________

Michael F. Duffy, Commissioner

____________________________________

Michael G. Young, Commissioner

____________________________________

Robert F. Cohen, Jr., Commissioner

____________________________________

Patrick K. Nakamura, Commissioner

Distribution:

William Forrest

Forrest Aggregate

200 East Sutton Rd.

P. O. Box 439

Metorma, MI 48455

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

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

Washington, D.C. 20001-2021