**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH     

  ADMINISTRATION  (MSHA)          

 

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GLOBAL  PUMICE, LLC                                        | :

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Docket  No. WEST 2020-0254

A.C.  No. 04-04783-511041

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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

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/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

thrubik@globalpumice.com

 

EmilyToler-Scott, Esq.

Officeof the Solicitor

U.S.Department of Labor

20112th St. South, Suite 401

Arlington,VA 22202-5450

Scott.Emily.T@dol.gov

 

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

Nelson.April@dol.gov

 

ChiefAdministrative Law Judge Glynn Voisin

FederalMine Safety & Health Review Commission

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

Washington,DC 20004-1710

GVoisin@fmshrc.gov

 

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

Garris.Melanie@dol.gov