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:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On February 9, 2012, the Commission received from Dominion Coal Corporation (“Dominion”) a motion seeking to reopen ten penalty assessment proceedings and relieve it from the default orders entered against it.

            On March 16, July 26, and July 29, 2011, Chief Administrative Law Judge Lesnick issued ten Orders to Show Cause which by their terms became Default Orders if the operator did not file an answer within 30 days. These Orders to Show Cause were issued in response to Dominion’s failure to answer the Secretary’s May 24, 2010, February 18, 2011, and April 25, 2011 Petitions for Assessment of Civil Penalty. The Commission did not receive Dominion’s answers within 30 days, so the default orders became effective on April 18, August 26, and August 29, 2011, respectively.

            Dominion asserts that it failed to file timely answers due to personnel changes and a shortage of personnel. Moreover, Dominion states that the Default Orders were not received by the correct person at the company. Dominion’s compliance coordinator maintains that he made this issue his primary responsibility, trained employees regarding the importance of receiving and routing mail, and began working with a law firm to timely file future motions. The Secretary does not oppose the request to reopen for the limited purpose of allowing the submission of her Motions to Approve Settlement, filed in December, 2011.

            The judge’s jurisdiction in this matter terminated when the defaults 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 orders here have become final decisions 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 Dominion’s requests and the Secretary’s responses, in the interest of justice, we hereby reopen these proceedings and vacate the Default Orders. Accordingly, these cases are 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. Dominion shall file Answers to the Show Cause Orders 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:

Randy Taylor

Safety Representative

Dominion Coal Corp.

15498 Riverside Drive

Oakwood, VA 24631

RHTAYLOR@suncoke.com

Sherry Graley, Esq.

Allen Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333-3394

SLGraley@agmtlaw.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

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

Washington, D.C. 20001-2021