Secretary of Labor v. LRock Industries

Plain-English summary

LRock Industries received citations written one minute apart, but the related penalties were placed in two separate dockets without the operator realizing it. LRock answered the petition in the first docket but not the petition in the second, and the second case went into default. The plant manager also said the main office that received mail was an hour from the mine and may not have notified him. The Secretary did not oppose reopening but reminded LRock to answer every petition and take show-cause orders seriously. The Commission found excusable neglect based on confusion over the split dockets, vacated the default, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The default order was vacated and the case was remanded to the Chief Administrative Law Judge.
• Key point: Confusion caused by closely related citations being placed in separate dockets supported reopening when the operator answered only one petition.

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.

LROCK
INDUSTRIES

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Docket
No. WEST 2018-0449

A.C.
No. 45-03710-465836

BEFORE: 
Traynor, Chair; Althen and Rajkovich, 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 4, 2019, the Commission received from
LRock Industries (“LRock”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.

On
November 9, 2018, the Chief Administrative Law Judge issued an Order to Show
Cause in response to LRock’s perceived failure to answer the Secretary of
Labor’s July 30, 2018 Petition for Assessment of Civil Penalty. By its terms,
the Order to Show Cause was deemed a Default Order on November 26, 2018, when
it appeared that the operator had not filed an answer within 15 days.

LRock asserts that the citations at issue,
despite being “written one minute apart” from each other, were divided into two
docket numbers without the operator’s knowledge. As a result, according to the
operator, it only properly answered the penalty petition for the first docket
number without answering the petition for the second docket number. The
operator asserts that its main office that receives the mail may have failed to
notify him about it. According to the operator’s plant manager, the main office
is located one hour from the mine site, and the plant manager rarely visits the
main office because he is at the mine each day. The Secretary does not oppose
the request to reopen but notes that all proposed penalty petitions filed by
the Secretary clearly instruct the operator to file an answer within 30 days of
the date on the petition. He urges the operator to timely file an answer to all
penalty petitions and to take Show Cause Orders from the Administrative Law
Judge 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 LRock’s request and the Secretary’s response, we find that the operator
acted with excusable neglect due to its apparent confusion regarding the
process and its lack of knowledge about the case being divided into two separate
dockets. See, e.g. , Lehigh SW Cement Co ., 39 FMSHRC 482 (Mar.
2017) (reopening a case where operator had overlooked the fact that the
proposed assessment had been split into several dockets, which had caused the operator
to fail to file a timely answer). 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/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution (e-mail):

John
Bredfield

Plant
Manager

LRock
Industries

10050
Barnes Drive

Castle
Rock, WA 98611

[email protected]

John
M. McCracken

Office
of the Solicitor

Division
of Mine Safety and Health

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Emily
Toler Scott

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]