<DOC>
[DOCID: f:york9887c.wais]
CUSIC TRUCKING, INC.
July 16, 1999
YORK 98-87-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 16, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. YORK 98-87-M
: A.C. No. 18-00525-05501 9BM
CUSIC TRUCKING, INC. :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY: Jordan, Chairman; Riley and Beatty, Commissioners
This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994). On January 27, 1999, Chief Administrative Law Judge
Paul Merlin issued an Order of Default to Cusic Trucking, Inc.
("Cusic") for failing to answer the October 21, 1998 petition
for assessment of penalty filed by the Secretary of Labor or
the judge's December 9, 1998 Order to Respondent to Show
Cause. The judge assessed the $90 civil penalty proposed by
the Secretary.
On March 17, 1999, the Commission received a copy of
a letter from Cusic dated September 9, 1998 disputing the
Secretary's proposed civil penalty. Mot. at 1. While this
letter appears to be a response to the Secretary's proposed
penalty assessment, it was forwarded to the Commission
without explanation or assertion that it had been previously
sent to either the Commission or the Secretary of Labor.
Moreover, the letter does not mention the default order
issued in this matter.
On May 7, 1999, the Commission received the Secretary's
opposition of Cusic's request. The Secretary asserts that
the September 9 letter Cusic submitted to the Commission fails
to state grounds upon which Fed. R. Civ. P. 60(b) relief could
be granted. S. Opp'n at 5-6.
The judge's jurisdiction over this case terminated when
his default order was issued on January 27, 1999. 29 C.F.R.
� 2700.69(b). 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); 29 C.F.R. � 2700.70(a).
If the Commission does not direct review within 40 days of an
order's issuance, it becomes a final decision of the Commission.
30 U.S.C. � 823(d)(1). Cusic's request was received by the
Commission on March 17, after Judge Merlin's order had become
a final decision of the Commission.
Relief from a final Commission judgment or order is
available to a party under Fed. R. Civ. P. 60(b); see also
29 C.F.R. � 2700.1(b) (Federal Rules of Civil Procedure apply
"so far as practicable" in the absence of applicable
Commission rules); Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991). Rule 60(b) motions are committed to the sound
discretion of the judicial tribunal in which relief is sought.
Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987),
cert. denied, 484 U.S. 1027 (1988); see Green Coal Co.,
18 FMSHRC 1594, 1595 (Sept. 1996).
The operator offers no explanation for its failure to
timely file an answer to the Secretary's petition for
assessment of penalty or to the judge's show cause order.
Thus, Cusic has failed to set forth any grounds establishing
that Fed. R. Civ. P. 60(b) relief is appropriate. See
Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995)
(denying request to reopen final Commission order where
operator failed to set forth grounds justifying relief);
Green Coal Co., 18 FMSHRC at 1595 (denying unrepresented
operator's late-filed petition for discretionary review of
judge's decision because no satisfactory explanation offered
for late filing).[1]
**FOOTNOTES**
[1]: Our holding here in no way departs from the
Commission's longstanding practice of holding the pleadings
of unrepresented litigants to less stringent standards than
those drafted by attorneys. See, e.g., CG&G Trucking, Inc.,
15 FMSHRC 193, 193-94 (Feb. 1993) (remanding where small
operator acting without benefit of counsel offered potentially
valid reason for failing to timely respond to show cause
order); Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990)
(same). Rather, we maintain that, even applying this less
stringent standard, Cusic has failed to present in its
request a colorable claim on which we could grant relief from
the final order. In this regard, the instant matter is
distinguishable from Farmer v. Island Creek Coal Co., 13
FMSHRC 1226, 1231-32 (Aug. 1991), cited by the dissent (slip
op. at 4), in which we determined that, "[g]iven the possible
exculpatory nature of [complainants'] explanations [for their
failure to meet a filing deadline], a remand to the judge to
allow him to assess the merits of these allegations is
appropriate." 13 FMSHRC at 1232. Here, by contrast, Cusic
has offered no explanation whatsoever for its failure to
respond to the judge's show cause order, which unambiguously
and in plain language ordered Cusic to "send an Answer . . .
within 30 days or show good reason for [failing] to do so."
Show Cause Order dated December 9, 1998.
Accordingly, Cusic's request for relief from the final
Commission decision is denied.[2]
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Robert H. Beatty, Jr.,
Commissioner
**FOOTNOTES**
[2]: The dissent views Cusic's September 9 letter,
submitted with the notice of contest, as the
"functional equivalent" of an answer to the petition for
assessment of penalty filed October 21, 1998. Slip op. at
4 n.2. It appears that the dissent would consider such a
submission (at least by an unrepresented operator) to
absolve the operator from the requirement of Commission
Procedural Rule 29, 29 C.F.R. � 2700.29, to file an
answer to a penalty petition. This approach would also
permit Cusic to, in effect, answer a petition for penalty
assessment that has not yet been filed.
Commissioners Marks and Verheggen, dissenting:
We dissent. The Commission has always held the pleadings
of pro se litigants to less stringent standards than pleadings
drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269,
1273 (Aug. 1992) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)). In keeping with this principle, we believe that
cases involving pro se litigants should be dismissed on a
pleading technicality only in the very rarest of cases.
Instead, in such cases, judges should ensure that they inform
themselves of all the available facts relevant to their
decisions, including pro se litigants' versions of those
facts. Perry v. Phelps Dodge Morenci Inc., 18 FMSHRC 1918,
1920 (Nov. 1996) (citing Heckler v. Campbell, 461 U.S. 458,
470-73 (1983) (Brennan, J., concurring)).
Here, Cusic's case was dismissed because he failed to
file an answer to the Secretary's petition for assessment
of a penalty. Slip op. at 1; see 29 C.F.R. � 2700.29.[1]
We note, however, that when he initially notified the
Secretary of his intent to challenge her proposed penalty,
his statement essentially met the requirements of Rule 29.
On remand, we would direct the judge to treat it accordingly,
and to allow Cusic the opportunity to pursue his case.[2]
We find the issues in this case not dissimilar from those
in Farmer v. Island Creek (a case involving a pro se claimant),
where the Commission stated: "Given complainant's silence below
in the face of the operator's motion to dismiss, this case
arrives at the Commission in virtually the same posture as a
default. As in any default case, the defaulted party has
failed to speak at some crucial juncture." 13 FMSHRC at 1232.
After noting "a pro se party's general lack of understanding
of appropriate Mine Act and Commission procedure," the
Commission held: "We conclude that good cause [for the
complainant's delay] has been shown to the extent that, in the
interests of justice, the matter should be remanded to the
judge so that complainants' explanations can be placed before
him for his resolution." Id.
We believe that the Commission's reasoning in Farmer and
Perry applies here, and we would therefore vacate the judge's
dismissal order and remand the case for further evidentiary
proceedings.
Marc Lincoln Marks,
Commissioner
Theodore F. Verheggen,
Commissioner
Distribution
Thomas B. Cusic, President
Cusic Trucking, Inc.
P.O. Box 62
Abell Road
Avenue, MD 20609
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006
**FOOTNOTES**
[1]: Commission Procedural Rule 29 provides: "A
party against whom a petition for assessment of penalty is
filed shall file an answer within 30 days after service of
the petition for assessment of penalty. An answer shall
include a short and plain statement responding to each
allegation of the petition."
[2]: Our colleagues state that "Cusic has failed to
set forth any grounds establishing that Fed. R. Civ. P. 60(b)
relief is appropriate." Slip op. at 2. Our focus,
however, is different from that of our colleagues. Where
they focus on whether Cusic's request for relief meets the
requirements of Rule 60(b), we focus on the proceedings below
and find that the judge, under the Commission's liberal
approach to pro se pleadings, could have treated Cusic's
initial filing with the Secretary as the functional equivalent
of an answer and gone on with the proceedings. Our colleagues
also fault us for taking an approach that would "absolve the
operator [not represented by counsel] from the requirement of
[Rule 29] to file an answer," and that would permit Cusic
to "answer a [penalty] petition . . . that has not yet been
filed." Slip op. at 3 n.2. Our point is, however, that
Cusic filed a pleading that is, for all intents and
purposes, an answer. Faulting him for filing such a paper
before a petition was filed appears to us to exalt form over
substance.