FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

September 14, 2012

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 January 31, 2012, the Commission received from Powell Mountain Energy, LLC (“Powell”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On June 28, 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 Powell’s failure to answer the Secretary’s April 5, 2011 Petition for Assessment of Civil Penalty. The Commission did not receive Powell’s answer within 30 days, so the default order became effective on July 29, 2011.

            Powell asserts that it timely contested the proposed assessment, and never received the penalty petition. Powell’s counsel states that he recently discovered this delinquency while reviewing the mine data retrieval system on MSHA’s website. The Secretary does not oppose the request to reopen but notes that the penalty petition and Show Cause Order were mailed to the same address of record and were not returned undelivered. The record shows that the Show Cause Order was delivered on June 30, 2011. The Secretary states that the operator’s address of record was changed on July 11, 2011, and MSHA mailed a delinquency notice to this new address of record on January 6, 2012. The Secretary maintains that it is the operator’s responsibility to keep an accurate address of record, to have a forwarding address set up with the post office, and to forward documents that it receives to its legal counsel if necessary.

            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 Powell’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. Powell shall file an Answer to the Show Cause Order within 30 days of the date of this order.

                                                                                    /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:

Powell Mountain Energy, LLC

Rt. 636 Benedict Rd.

St. Charles, VA 24282

Timothy W. Gresham, Esq.

Penn, Stuart & Eskridge

208 East Main Street

P.O. Box 2288

Abingdon, VA 24212

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