Secretary of Labor v. Las Vegas Paving Corp.

Plain-English summary

Las Vegas Paving Corporation did not answer the Secretary's penalty petition, and a second show-cause order became a default order. The company said it never received the petition, could not determine why, and acknowledged that a mistake occurred. It described a methodical system for tracking inspections, citations, assessments, and contested cases, along with a strong record of timely responses. The Secretary did not oppose reopening but urged the company to answer petitions on time and take show-cause orders seriously. The Commission found mistake based on the failed receipt and the company's overall filing record, 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: An unexplained missed petition supported reopening when the operator documented reliable tracking procedures and a strong history of timely responses.

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.

LAS
VEGAS PAVING CORP.

:

:

:

:

:

:

:

Docket
No. WEST 2020-0167

A.C.
No. 26-02279-507222

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 10, 2021, the Commission received
from Las Vegas Paving Corporation (“Las Vegas Paving”) a motion seeking to
reopen a penalty assessment proceeding and relieve it from the Default Order
entered against it.  

On
April 28, 2020, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Las Vegas Paving’s perceived failure to answer the
Secretary of Labor’s February 20, 2020 Petition for Assessment of Civil
Penalty. On August 5, 2020, the Chief Administrative Law Judge issued a second Order
to Show Cause to the operator. By its terms, the second Order to Show Cause was
deemed a Default Order on September 4, 2020, when it appeared that the operator
had not filed an answer within 30 days.    

Las Vegas Paving asserts that it never
received the Secretary’s Petition for Civil Penalty and acknowledges that a
mistake was made on its part. It states that it has not yet been able to
ascertain why the Petition was not received and submits evidence to “demonstrate
a very good track record of correspondence . . . on many previous assessments
and contested cases.” Las Vegas Paving contends that this type of mistake “does
not typically happen” and that it has reviewed its procedures to prevent any
similar mistakes from occurring in the future. In its submission, the operator
outlines a methodical tracking of its inspections, citations and penalty assessments,
in order to demonstrate that it takes assessments and Petitions very seriously.
The Secretary does not oppose the request to reopen but 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).

We note that operators should take Show
Cause Orders seriously and should adequately explain any delays in responding
to such orders. However, having reviewed Las Vegas Paving’s request and the
Secretary’s response, we find that the operator acted with mistake. In reaching
this conclusion, we consider the inadvertent failure to receive the Secretary’s
Petition, and in particular, the operator’s overall record of timely responding
to proposed assessments and Petitions. 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):

Danny
Fitzgerald

Mining
Manager

Las
Vegas Paving

4420
S. Decatur Blvd

Las
Vegas, NV 89103

[email protected]

John
M. McCracken, Esq.

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]

Emily
Toler Scott, Esq.

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]

Chief
Administrative Law Judge Glynn 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]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]