<DOC>
[DOCID: f:kt2001129.wais]
PERRY COUNTY COAL CORP.
KENT 2001-298
April 9, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030
April 9, 2002
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2001-298
Petitioner : A. C. No. 15-02085-03741
:
v. :
:
PERRY COUNTY COAL CORP., :
Respondent : Mine
: EAS No. 1
ORDER DENYING MOTION TO REOPEN
ORDER TO PAY
Before: Judge Barbour
This case is before me pursuant to an order of the
Commission dated October 31, 2001, remanding this matter for
further consideration and determination as to whether the
operator, Perry County Coal Corp. ("Perry"), is entitled to
relief under Rule 60(b)(1) of the Federal Rules of Civil
Procedure. [1] Rule 60(b)(1) provides relief from a final
judgment in cases where there has been a "mistake,
inadvertence, surprise, or excusable neglect." In the order,
the Commission denies relief with respect to Citation Nos.
7467118, 7467119, and 7512809 but remands with respect to
Citation No. 7497581. Subsequent to this October remand order,
Perry filed a Motion to Reconsider. The Commission denied
the motion in a February 19, 2002 order.
This matter arose because the operator failed to notify
the Secretary that it wished to contest the proposed penalty
within 30 days of receipt of the proposed penalty assessment.
In its request to reopen, Perry, through counsel, asserts that
it filed a notice of contest to all the citations listed above,
but, through mistake or inadvertence, failed to return the
"green card" to contest the civil penalties. Letter dated
May 26, 2001. In its Motion to Reconsider the Commission's
October 31 order, Perry contends it filed a notice of contest
for Citation No. 7497581 in Docket No. KENT 2000-222-R,
believing that contesting the single citation would be adequate
to contest all four citations in addition to any subsequent
proposed penalties for the citations. Mot. at 1-2.
The Commission has stated that default is a harsh remedy,
and if the defaulting party makes a showing of adequate or good
cause for failing to timely respond, the case may be reopened.
Coal Prep. Services, Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Defaulted cases have been reopened where a party appearing pro
se has misunderstood Commission procedure. (See Sproule Const.
Co., FMSHRC 691, 692 (June 1999), reopened where the operator,
appearing pro se, was not familiar with Commission procedures
and failed to appreciate the significance of a Show Cause
Order).
However, the present case is distinguishable from Sproule
in that Perry has been represented by counsel at least since
the filing of the notice of contest for Citation No. 7497581.
Mot. Requesting Hearing, KENT 2000-222-R. Counsel could have
been made aware of the need to file a notice of contest to the
proposed penalty assessment through basic research or inquiry
into Commission procedures. Accordingly, I find that Perry
has failed to meet the criteria of Rule 60(b)(1).
Therefore, Perry's request to reopen is DENIED.
Perry is ORDERED to pay the proposed penalty assessment
of $14,055.00 for all four citations.
David F. Barbour
Chief Administrative Law Judge
Distribution: (Certified)
Randall Scott May, Esq., Barret, Hayes, Carter & Roark, PSC,
113 Lovern St., Drawer 1017, Hazard, KY 41701
W. Christian Schumann, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington,
VA 22203
Tamara Nelson, Office of Civil Penalty Compliance, MSHA, U. S.
Department of Labor, 4015 Wilson Blvd., 9th Floor, Arlington,
VA 22203
/mc
**FOOTNOTES**
[1]:While the Commission is not obligated to adhere to
the Federal Rules of Civil Procedure, the Commission has
found guidance and has applied "so far as practicable"
Rule 60(b). See 29 C.F.R. � 2700.1(b).