Secretary of Labor v. Image Materials

Plain-English summary

Image Materials defaulted after it appeared not to answer the Secretary's penalty petition or the ALJ's show-cause order. The operator said it timely sent its contest to MSHA's Dallas office and later sent it again to the Arlington office, but the filing was lost after receipt. The Secretary did not oppose reopening. The Commission remanded the case for the Chief ALJ to decide whether good cause excused Image's failure to respond and to conduct any further appropriate proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1)-(2); 30 C.F.R. §§ 2700.1(b), 2700.69(b), 2700.70(a)
• Outcome: The case was remanded for a good-cause determination.
• Key point: A disputed claim that an answer was timely sent but lost required factual consideration by the Chief ALJ.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR,                              :

MINE SAFETY AND HEALTH                   
:

ADMINISTRATION (MSHA)                      
:

:

v.                                              
:         Docket No. CENT 2020-0017

:         A.C. No. 41-04147-499677

IMAGE MATERIALS                                     :

:

BEFORE: Rajkovich, Chairman; Althen and Traynor,
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. (2012) (“Mine Act”). On March 17, 2020, the Commission received
from Image Materials (“Image”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.

On January
31, 2020, the Chief Administrative Law Judge issued an Order to Show Cause in response
to Image’s failure to answer the Secretary of Labor’s November 25, 2019
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause
was deemed a Default Order on February 21, 2020, when it appeared that the
operator had not filed an answer within 20 days.

Image
asserts that it timely contested the Petition for Assessment of Civil Penalty
and that its contest was lost after it was received. It states that on December
23, 2019, its contest was sent to the MSHA Dallas office, and again to the
Arlington office on February 5, 2020. The Secretary does not oppose the request
to reopen, but urges the operator to take steps to ensure that future penalty
contests are timely filed.

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 Image’s request and the Secretary’s response, in the interest of
justice, we hereby remand this matter to the Chief Administrative Law Judge for
a determination of whether good cause exists to excuse Image’s failure to
respond to the show cause order, and for further proceedings as appropriate .

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution:

Vaughn Proffitt, CEO

Image Materials

P.O. Box 1693

Roanoke, TX 76262

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

Division of Mine Safety and
Health

201 12th Street South, Suite
401

Arlington, VA 22202-5450

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]

Chief Administrative Law
Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]