Secretary of Labor v. A-Positive Electric Co., Inc.

Plain-English summary

A-Positive Electric asked the Commission to reopen a penalty proceeding after a show-cause order became a default order. The company said it responded to the show-cause order, but the response was returned because it was sent to an incorrect address. The Secretary did not oppose reopening but asked the company to take its future obligations seriously. The Commission found that the prompt reopening request merited relief, vacated the default, and remanded the case for further proceedings.

Decision snapshot

• Cited authority: None
• Outcome: The default order was vacated, and the penalty proceeding was reopened and remanded.
• Key point: A prompt reopening request supported relief after the company's response was returned because of an incorrect address.

Full text (FMSHRC public release)

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.

A-POSITIVE
ELECTRIC CO., INC.

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:

:

:

:

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Docket
No. PENN 2019-0105

A.C.
No. 36-07416-491552-MFH

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. (2018) (“Mine Act”). On September 30, 2019, the Commission received
from A-Positive Electric Co., Inc. (“A-Positive”) a motion seeking to reopen a
penalty assessment proceeding and relieve it from the Default Order entered
against it.

On
August 28, 2019, the then-Acting Chief Administrative Law Judge issued an Order
to Show Cause in response to A-Positive’s perceived failure to answer the
Secretary of Labor’s June 27, 2019 Petition for Assessment of Civil Penalty. By
its terms, the Order to Show Cause was deemed a Default Order on September 18,
2019, when it appeared that the operator had not filed an answer within 20
days.

A-Positive asserts that it responded to the
Order to Show Cause but its response was returned to it due to an incorrect
address. The Secretary does not oppose the request to reopen, but requests that
A-Positive, having contested the penalty at issue, take its further obligations
seriously.

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 A-Positive’s request and the
Secretary’s response, we find that A-Positive’s request to reopen so
soon after the due date to respond to the Order to Show Cause merits reopening
of the case. 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/ 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 (e-mail):

Thomas
P. Schilinski

A-Positive
Electric Co., Inc.

1953
Smith Township State Road

PO
Box 466

Slovan,
PA 15078

Emily
Scott, Esq.

Office
of the Solicitor

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

[email protected]