FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 25, 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 October 28, 2011, the Commission received from Trivette Trucking (“Trivette”) two motions seeking to reopen two penalty assessment proceedings and relieve it from the orders of default entered against it.

            On March 16, and March 17, 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 its answers within 30 days. These Orders to Show Cause were issued in response to Trivette’s failure to answer the Secretary’s March 22, 2010 Petitions for Assessment of Civil Penalty. The Commission did not receive Trivette’s answers within 30 days, so the orders of default became effective on April 18, 2011.

            Trivette asserts that it failed to forward the Secretary’s petitions to its counsel because it believed that answers were already filed in these matters. Additionally, Trivette states that the Show Cause Orders were not sent to its counsel, even though its counsel has entered an appearance on its behalf in other matters before the Commission. Moreover, Trivette was able to reach settlement proposals with MSHA.

            The Secretary does not oppose the requests to reopen for the limited purpose of allowing the submission of the Motion to Approve Settlement, filed August 5, 2011. The Pikeville, KY, Conference and Litigation Representative (“CLR”) confirms that he was unaware of the Show Cause Orders.

            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 Trivette’s requests and the Secretary’s response, in the interest of justice, we hereby reopen the proceedings 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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Billy R. Shelton, Esq.

Whitney L. Lucas, Esq.

Jones, Walters, Turner & Shelton, PLLC

151 N. Eagle Creek Drive, Suite 310

Lexington, KY 40509

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