FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,   MINE SAFETY AND HEALTH       ADMINISTRATION (MSHA)                                  v. GLOBAL PUMICE, LLC

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Docket No. WEST 2020-0254 A.C. No. 04-04783-511041

BEFORE:  Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On March 31, 2021, the Commission received from Global Pumice, LLC a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

            On November 23, 2020, the Chief Administrative Law Judge issued an Order to Show Cause in response to Global Pumice’s perceived failure to answer the Secretary of Labor’s May 18, 2020, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on December 24, 2020, when it appeared that the operator had not filed an answer within 30 days.   

Global Pumice asserts that the answer to the Petition for Assessment of Civil Penalty was mailed to the Mine Safety and Health Administration (“MSHA”) rather than the Commission, in the mistaken belief that it would be forwarded to the appropriate office. The operator further states that the Order to Show Cause was never received, because it was mailed to the incorrect address. The operator became aware of the default upon receiving a delinquency notification on March 23, 2020, and filed the motion to reopen shortly thereafter. The Secretary does not oppose the request to reopen but reminds Global Pumice to ensure that future contests are timely filed in accordance with MSHA’s regulations and the Commission’s procedural rules.

            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) (“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). 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 will be permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

            Having reviewed Global Pumice’s request and the Secretary’s response, we find that the operator’s failure to properly file a response was the result of mistake. 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, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Thomas A. Hrubik

Global Pumice, LLC

P.O. Box 174

19968 Bear Valley Road, Suite B

Apple Valley, CA 92307

thrubik@globalpumice.com

Emily Toler-Scott, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Scott.Emily.T@dol.gov

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Chief Administrative Law Judge Glynn Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Garris.Melanie@dol.gov