<DOC>
[DOCID: f:ke95296.wais]
R B COAL COMPANY, INCORPORATED
November 28, 1995
KENT 95-596
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
November 28, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-596
Petitioner : A. C. No. 15-17077-03543
v. :
: RB No. 5 Mine
R B COAL COMPANY, :
INCORPORATED, :
Respondent :
DECISION TO REOPEN
ORDER TO FILE PENALTY PETITION
Appearances: Mark Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Richard D. Cohelia, R B Coal Company Inc.,
Pathfork, Kentucky, for Respondent.
Before: Judge Merlin
The issue presented is whether the operator may be allowed
to proceed to a hearing on the merits of its claim or whether
the case should be dismissed because the operator did not
request a hearing within the period allowed by the Mine Act and
Commission regulations.
On November 28, 1994, an inspector of the Mine Safety and
Health Administration issued to the operator Citation No. 4247308
under section 104(d) of the Act, 30 U.S.C. � 814(d). On the same
date the operator was also issued Order No. 4247309 under
section 104(d). Thereafter, on March 23, 1995, the Mine Safety
and Health Administration issued a Notice of Proposed Assessment
for the subject citation and order as well as for a citation
issued under section 104(a).[1] The notice advised the operator
that it had 30 days from the date it received the proposed
assessment to either pay or notify MSHA that it wished to contest
the proposed assessment and was requesting a hearing. The notice
further told the operator that if it did not exercise these rights
within 30 days, the proposed assessment would become a final
order of the Commission. The notice was mailed certified mail
return receipt requested and received by the operator on March 28,
1995.
The 30th day from the date of the operator's receipt of the
proposed assessment was April 27, 1995. MSHA's Civil Penalty
Compliance Office received a request for hearing from the operator
which is date stamped May 26, 1995. The hearing request is signed
and dated May 12, 1995, by the operator's engineer. On June 8,
1995, MSHA wrote the operator that the proposed assessment was
final and that the hearing request could not be honored because
the case had not been timely contested.
On June 16, 1995, the operator through its engineer wrote
the Commission seeking permission to contest these civil penalty
assessments. The operator admitted that it had failed to contest
the assessments within the 30 day period specified in section
105(a) of the Act, 30 U.S.C. � 815(a), and section 2700.26 of
Commission regulations, 29 C.F.R. � 2700.26. According to the
engineer's letter, the hearing request was not filed on time
because it was misplaced in the paperwork of numerous assessments.
The letter further stated that the company had just recently
begun implementing a program aimed at contesting citations which
it considered excessive and that it was learning by trial and
error, because it would be more expensive to hire an attorney
than pay the assessments.
On July 18, 1995, the Commission issued an order treating
the operator's letter as a petition for discretionary review and
stated that it was unable to evaluate the merits of the operator's
position. Therefore, it remanded the case for a determination
whether relief was appropriate under applicable criteria. 17
FMSHRC 1110.
On July 25, 1995, I issued an order requiring the Solicitor
to show cause why the case should not be assigned to an
Administrative Law Judge for disposition on the merits.
Thereafter, on August 14, 1995, the Solicitor filed a response
to the order to show cause, asserting that the operator had not
demonstrated that it was entitled to relief and arguing that
even if the reasons advanced justified relief, they were not
presented in such a manner as to obviate the need for a hearing.
Attached to the Solicitor's motion were copies of the citation
and order issued to the operator for the alleged violations which
had been designated significant and substantial and due to
unwarrantable failure. Also attached was a copy of the notice of
the proposed assessment, dated March 23, 1995, together with the
assessment sheet. The first alleged violation was assessed at
$1,200 and the other at $1,500.
A notice of hearing was issued on September 28, 1995, and
a hearing was held on November 1, 1995.
At the hearing the operator's engineer testified that he is
the individual at the mine who is served with citations and orders,
receives the notices of proposed assessments, and decides whether
to pay or contest them (Tr. 5-6, 10-11). He is the only person at
the mine who performs these tasks. Because the operator is small
with only 100 to 120 total employees and in view of the present
state of mining, he has many other duties to perform (Tr. 16, 58).
These other duties include training new employees, performing
surveys, taking dust samples, inspecting sections before the MSHA
inspector comes and accompanying the inspectors on their inspections
(Tr. 5-6, 16). After receiving a citation he disagrees with, the
engineer has a closeout conference with the inspector and if the
matter remains unresolved, a health and safety conference is held
and if a resolution is not reached, he requests a hearing before
the Commission (Tr. 6-7). All citations issued by an inspector on
the same day do not come on the same proposed assessment notice
(Tr. 8). If a citation is going to be paid, the engineer tries to
stagger payments depending upon the operator's cash position at
the particular time so that a few are paid at a time (Tr. 12).
Therefore, citations he decides to pay are not always forwarded
immediately to the operator's corporate office for payment (Tr.
12). If he decides to appeal to the Commission, he also staggers
mailing hearing requests so that hearings will not all be at the
same time (Tr. 28, 47-48). Due to his other responsibilities he
cannot spend all his time during a given period contesting
citations (Tr. 16). According to the engineer, the operator
routinely contests citations and orders issued under section
104(d) of the Act, supra, because it disagrees with the findings
of significant and substantial and unwarrantable failure (Tr. 7,
30). Also the assessments in these cases are expensive and
significant and substantial findings count toward their "pattern
of violations" under section 104(e), 30 U. S. C. � 814(e) (Tr.
32). In the engineer's opinion these findings have been
excessive and he has been successful in having them changed
and securing settlements (Tr. 30-31, Op. Exh. No. 3). He does
not necessarily let 104(a) citations slide either (Tr. 11).
The engineer testified that two or three months before he
received the notice of proposed assessment in this case, he
obtained a new computer (Tr. 8-9). When he received this
notice, he was entering on the computer citations and notices
of assessment back to 1993 (Tr. 25, 51). For each case he
enters the citation number, the assessment control number,
dollar amount, prior action, and status (Tr. 9-10, Op. Exh.
No. 3). This case is the only time he failed to request a
hearing timely (Tr. 59-60). After the late filing in this
case, he purchased additional software whereby he now has a
daily calender and can bring up deadlines (Tr. 49-50). If he
had had this software when he received this notice, he would
not have been late (Tr. 50).
The engineer explained that it is his practice to put
contested citations in a file cabinet with their number on the
file (Tr. 27). Citations that are to be paid are placed in a
basket on his desk to be taken to the corporate office at
Brookside which is 40 miles away (Tr. 10-11, 25). He circles
the citations he is going to contest and leaves a note for the
ones to be paid (Tr. 37, Gov't. Exh. 1). He knew when he
first saw the 104(d) citation and order in this case that they
would be appealed (Tr. 28). At that time he was working on
about 20 assessment sheets (Tr. 14-15). He could have filled
out the explanation portion of the hearing request entered the
data on the same day he received the proposed assessment, a
couple of days later or even 15 days later (Tr. 28-29, 38-40).
Several orders were issued by the inspector at that particular
time and the engineer tried to space them out (Tr. 29). He
does not dispute the date of receipt as March 28 and said that
the return receipt card had been signed by an individual who
works in the warehouse (Tr. 34-35). Subsequently, on May 12
he signed the hearing request and gave it to be mailed (Tr.
42-43). As already stated, he staggers hearing requests so
that all the hearings will not occur at the same time, and he
did not intend this request to be late (Tr. 48). The engineer
did not know why the request was mailed almost two weeks after
he signed it (Tr. 33). When he signs a request for hearing he
gives it to the office worker to mail (Tr. 33-34). He
subsequently found the request for hearing in the basket for
assessments to be paid, which was the wrong pile (Tr. 25, 29,
49). Mail goes to several different places and may have been
put in the wrong pile or misplaced (Tr. 47). The individual
working in the office who is responsible for mailing is a
miner's widow and does not know too much about secretarial
work (Tr. 46). She just more or less answers the telephone
(Tr. 34). She could have sent the hearing request to
Brookside by mistake (Tr. 47).
According to the engineer, all citations issued on the same
day do not come out in the same notice of proposed assessment and
assessment sheet (Tr. 8). The number of notices and assessment
sheets vary (Tr. 8). As previously set forth, the citation and
order at issue were included in the notice of proposed assess-
ment, and constitute the items in this docket number.
However, on November 28, 1994, the day these items were
issued, two more citations also were issued (Tr. 29, Op. Exh
No. 2). All these items were considered at the same Health
and Safety Conference (Tr. 17 Op. Exh. No. 2). However, the
other two citations were in a different notice of proposed
assessment and therefore, when a hearing was requested for
them, they were in a different docket number (Tr. 18). I take
official note that according to Commission records the docket
number for those citations is KENT 95-343 and that the
Secretary's penalty petition there was filed late by a
Conference and Litigation Representative ("CLR"), 29 C.F.R.
� 2700.28. The reasons given for the late filing were the
newness of the CLR program in which non lawyer MSHA employees
represent the Secretary in selected cases, and the confusion
of the CLR over the correct contest date. On May 26, 1995, I
accepted the explanations offered and issued an order
accepting the Secretary's petition. I noted that the CLR
program represents a new approach which I had approved in
prior cases. I also pointed out that the operator was not
prejudiced by the delay. Subsequently those cases were
settled (Tr. 19, 21).
Section 105(a) of the Act, supra, provides that an operator
has 30 days within which to notify the Secretary that it
wishes to contest the citation or proposed assessment. If
within 30 days of receipt of the Secretary's notification, the
operator fails to notify the Secretary that it intends to
contest the citation or proposed assessment, the proposed
assessment becomes a final order of the Commission. Id. In
Jim Walter Resources, Inc., 15 FMSHRC 782 (May 1993), the
Commission held that it has jurisdiction to decide whether
final judgments can be reopened.
Commission Rule 1(b) provides that the Commission and
its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure. 29 C.F.R. � 2700.1(b). In its July
18 order, the Commission once again stated that it possesses
jurisdiction to reopen uncontested assessments which have
become final under section 105(a), supra, and that these
determinations are made with reference to Federal Rule 60(b).
Federal Rule 60(b)(1) provides as follows:
On motion and upon such terms as are just, the
court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect * * *.
In Pioneer Investment Services Company v. Brunswick
Associates Limited Partnership, 113 S. Ct. 1489 (1993), 123 L.Ed
2d 74, the Supreme Court recognized that Bankruptcy Rule 9006(b)(1),
which contains the same "excusable neglect" standard as Rule
60(b)(1), grants a reprieve for out-of-time filings delayed by
"neglect". 123 L.Ed 2d at 85. In interpreting this
provision, the Court first turned to the ordinary meaning of
"neglect", which it said was to give little attention or
respect to a matter or to leave undone or unattended to,
especially through carelessness. Id. The Court said that the
word "neglect" therefore, encompassed both simple, faultless
omissions to act and, more commonly, omissions caused by
carelessness. Id. The Court further held that absent
sufficient indication to the contrary courts assume that
Congress intends words in its enactments to carry their
ordinary contemporary common meaning. Id. Consequently,
based on the plain meaning of neglect, the Court rejected an
inflexible approach that would exclude every instance of
inadvertent or negligent omission. Id. at 89.
With respect to the meaning of excusable neglect the Court
in Pioneer stated as follows:
Because Congress has provided no other guideposts
for determining what sorts of neglect will be
considered "excusable," we conclude that the
determination is at bottom an equitable one,
taking account of all relevant circumstances
surrounding the party's omission. These
include,. . . the danger of prejudice to the
debtor, the length of the delay and its potential
impact on judicial proceedings, the reason for
the delay, including whether it was within the
reasonable control of the movant, and whether the
movant acted in good faith.
Id. at 89.
Many Courts of Appeals have acknowledged and followed the test
set forth in Pioneer. It has been explicitly recognized that the
decision in Pioneer represented a change from prior law
and adopted a new and more lenient interpretation. U.S. v. Hooper,
9 F.3d 257 (2nd Cir. 1993); Matter of Christopher, 35 F.3d 232 (5th
Cir. 1994); U.S. v. Clark, 51 F.3d 42 (5th Cir. 1995); Reynold v.
Wagner, 55 F.3d 1426 (9th Cir. 1995); City of Chanute, Kansas v.
Williams Nat. Gas Co., 31 F.3d 1041 (10th Cir. 1994); Information
Systems and Networks Corp. v. U.S., 994 F.2d 792 (Fed. Cir. 1993).
See also, In Re SPR Corp., 45 F.3d 70 (4th Cir. 1995). Although
Pioneer was a case that arose under the bankruptcy rules, it has
been applied beyond the context of bankruptcy to other situations
where pertinent rules contain the same standard of "excusable
neglect". U.S. v. Hooper, supra at 259; U.S. v. Clark, supra at
44; Reynold v. Wagner, supra at 1429; Information Systems and
Networks Corp. v. U.S., supra at 796.
Applying the criteria of Pioneer, I find first that there
will be no prejudice to the Secretary if the operator is allowed
to proceed on the merits. There has been no allegation that the
delay which occurred here will hinder the Secretary in the
presentation of his case on the merits. In addition, a trial
on the merits is always favored over default. Information
Systems and Networks Corp. v. U.S., supra at 795. The fact
that the operator was not represented by counsel is another
factor to be taken into account. As described above, the
operator's engineer testified how he treats citations, notices
of proposed assessments, and requests for hearing. I found
him truthful and credible. His methods were sensible and
obviously undertaken in good faith. That he was in the
process of computerizing his records and that there were a
large number of cases going back to 1993 are relevant
circumstances. Most importantly, this is the only time this
small operator has been out of time in requesting a hearing.
Nor do I believe reopening this case will have an adverse
impact on Commission proceedings given the circumstances and
the short delay involved. After balancing all the above
factors and bearing in mind the Supreme Court's admonition
that the determination of what sorts of negligence are
excusable is at bottom an equitable one, I conclude that the
operator's late filed hearing request should be allowed and
the case reopened.
This conclusion is also consistent with Commission precedent.
In vacating defaults and remanding cases for determination
whether reopening is warranted, the Commission has repeatedly
reminded its Judges that default is a harsh remedy. See,
e.g., A.H. Smith Stone Company, 11 FMSHRC 796, 798 (May 1989).
The Commission itself has ordered a case reopened under Rule
60(b)(1) where the operator did not timely file an appeal,
relying upon the fact that the operator was without benefit of
counsel. C&B Mining Company, 15 FMSHRC 2096, 2097 (Oct.
1993). In its remands the Commission has considered the
absence of counsel in the forefront of relevant reasons that
could justify reopening. Kelley Trucking Company, 8 FMSHRC
1867, 1868 (Dec. 1986). See also, CG&G Trucking, Inc., 15
FMSHRC 193 (Feb. 1993); Mustang Fuels Corporation, 13 FMSHRC
1061, 1062 (July 1991). The Commission has also recognized
that an operator proceeding without counsel may be entitled to
relief when serious personal problems are responsible for the
untimeliness. James D. McMillen, Employed by Shillelagh
Mining Company, 13 FMSHRC 778, 779 (May 1991). The absence of
bad faith is another factor which should be taken into
account. Kenneth Howard v. B & M Trucking, 11 FMSHRC 499,
500 (April 1989). All the foregoing factors support a reopening
in the instant matter.
It is clear that this case is an isolated instance where the
operator slipped up. As appears above, I have excused the
Secretary's own late filing in the companion case. The
grounds here for operator relief are at the very least equally
persuasive as those advanced by the Secretary in the companion
case and in many other such cases where the Secretary seeks to
have his late filings allowed. Salt Lake County Road
Department, 3 FMSHRC 1714; Rhone-Poulenc of Wyoming Company,
15 FMSHRC 2089 (Oct. 1993) aff'd, 57 F.3rd 982 (10th Cir.
1995); Roberts Brothers Coal Company, Inc., 17 FMSHRC 1103
(June 1995); Lone Mountain Processing, Inc., 17 FMSHRC 839
(May 1995); Ibold Inc., 17 FMSHRC 843 (May 1995); Long Branch
Energy, 16 FMSHRC 2192 (Oct. 1994); Southmountain Coal
Company, Inc., 15 FMSHRC 2421 (Nov. 1993); Power Operating
Company Incorporated, 15 FMSHRC 931, (May 1993).
The operator however, is cautioned that if in the future
it should be late in filing the equities might not be in its
favor. The operator is now on notice that some of its
procedures, including mailing, need improvement.
The parties have filed post-hearing briefs and statements. To
the extent they are inconsistent with this decision, they are
rejected. The Solicitor appears unaware of Pioneer and the decisions
that follow it.
In light of the foregoing, it is ORDERED that this case be
REOPENED.
**FOOTNOTES**
[1]:The 104 (a) citation was paid and is not involved in
this case.
It is further ORDERED that within 45 days of the receipt
of this order, the Solicitor file the penalty petition for this
case.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
Richard D. Cohelia, Safety Director, R B Coal Co., Inc., Route 1,
Box 374, Evarts, KY 40828
Mr. David J. Partin, R B Coal Co., Inc., 8174 East Highway 72,
Pathfork, KY 40863
/gl