FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

November 5, 2013

SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. HARRY C. CROOKER & SONS, INC.

Docket No. YORK 2012 84-M         A.C. No. 17-00576-277211

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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) (AMine Act@). On March 8, 2013, the Commission received from Harry C. Crooker & Sons, Inc., (ACrooker@) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On July 24, 2012, the Chief Administrative Law Judge 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 Crooker=s failure to answer the Secretary of Labor=s February 16, 2012 Petition for Assessment of Civil Penalty. The Commission does not have a record of receiving Crooker=s answer within 30 days, so the default order became effective on August 24, 2012.

Crooker asserts that it sent its timely answer to the Show Cause Order to the Department of Labor and to the Commission. The Secretary does not oppose the request to reopen and notes that MSHA received Crooker=s answer on August 24, 2012.                  

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 the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. See 29 C.F.R. ' 2700.1(b) (Athe 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).

Having reviewed Crooker=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, Chairman

/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

/s/ William I. Althen                    

William I. Althen, Commissioner

Distribution:

Richard Perkins

Safety Director

Harry C. Crooker & Sons, Inc.

103 Lewiston Rd.

P.O. Box 5001

Topsham, Maine 04086

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