Secretary of Labor v. Global Pumice, LLC

Plain-English summary

Global Pumice mailed its answer to MSHA instead of the Commission, believing the filing would be forwarded. The company also said it never received the show-cause order because that order went to the wrong address. It learned of the default through a delinquency notice and moved to reopen shortly afterward. The Secretary did not oppose relief but reminded the operator to follow the correct filing rules. The Commission found mistake, vacated the default order, and remanded the penalty proceeding.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The default order was vacated and the proceeding was remanded.
• Key point: A misdirected answer and lack of notice supported reopening when the operator acted soon after learning of the default.

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.

GLOBAL
PUMICE, LLC

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Docket
No. WEST 2020-0254

A.C.
No. 04-04783-511041

BEFORE:  Jordan, Chair;
Althen, Rajkovich, and Baker, 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 31, 2021, the Commission received
from Global Pumice, LLC a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.

On
November 23, 2020, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Global Pumice’s perceived failure to answer the Secretary
of Labor’s May 18, 2020, Petition for Assessment of Civil Penalty. By its
terms, the Order to Show Cause was deemed a Default Order on December 24, 2020,
when it appeared that the operator had not filed an answer within 30 days.   

Global Pumice asserts that the answer to
the Petition for Assessment of Civil Penalty was mailed to the Mine Safety and
Health Administration (“MSHA”) rather than the Commission, in the mistaken
belief that it would be forwarded to the appropriate office. The operator
further states that the Order to Show Cause was never received, because it was
mailed to the incorrect address. The operator became aware of the default upon
receiving a delinquency notification on March 23, 2020, and filed the motion to
reopen shortly thereafter. The Secretary does not oppose the request to reopen
but reminds Global Pumice to ensure that future contests are timely filed in
accordance with MSHA’s regulations and the Commission’s procedural rules.

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 Global Pumice’s request and the
Secretary’s response, we find that the operator’s failure to properly
file a response was the result of mistake. 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/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Thomas
A. Hrubik

Global
Pumice, LLC

P.O.
Box 174

19968
Bear Valley Road, Suite B

Apple
Valley, CA 92307

[email protected]

Emily
Toler-Scott, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]