<DOC>
[DOCID: f:se97140.wais]
JIM WALTER RESOURCES, INC.
July 30, 1997
SE 97-140
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868
July 30, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 97-140
Petitioner : A. C. No. 01-01322-04075
:
v. : No. 5 Mine
:
JIM WALTER RESOURCES, INC., :
Respondent :
ORDER DENYING MOTION TO REOPEN
This case is before me pursuant to the Commission's order of
remand dated June 2, 1997.
The Secretary issued a notice of proposed penalty assessment
against the operator and the operator filed a request for
hearing. However, the request was filed 5 days late. The
operator seeks to have the matter reopened and the Solicitor
opposes.
The operator's brief represents that the delay was caused by
following reasons: a recent influx of citations and orders, an
unusually heavy caseload, current corporate downsizing with
elimination of many positions, many other responsibilities for
its attorney, and misplacing the file in this case and not
putting the case on the attorney's calendar. The operator seeks
relief under Rule 60 (b)(1) and (6).
In her brief the Solicitor argues that the reasons advanced
by the operator are insufficient to justify granting relief.
She states that the operator is a large corporation which
routinely deals with citations issued by the Mine Safety and
Health Administration (hereafter referred to as "MSHA").
Accompanying the brief is an affidavit of the Chief of MSHA's
Civil Penalty Compliance Office stating that since January 1996,
the operator has filed five other untimely requests for hearing,
that it did not seek reopening in three of them and that in two
of them reopening was granted.
Section 105(a) of the Act, 30 U.S.C. � 815(a), 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. The Commission has
held that it has jurisdiction to decide whether final judgments
can be reopened. Jim Walter Resources, Inc., 15 FMSHRC 782 (May 1993).
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 June 2 order
in this case, the Commission 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 * * *.
The motion shall be made within a reasonable time, and
for reasons (1), (2) and (3) not more than one year
after the judgment, order, or proceeding was entered or
taken.
Federal Rule 60 (b) (6) which allows the filing of a motion
at any time provides as follows:
[A]ny other reason justifying relief from the
operation of the judgment.
The motion to reopen in the instant matter was filed within
one year.
In Pioneer Investment Services Company v. Brunswick
Associates Limited Partnership, 507 U. S. 380 (1993), 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". 507 U. S.
at 388. 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 394-395.
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 395.
Many Courts of Appeals have acknowledged and followed the
test set forth in Pioneer. 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. In this context it has been recognized
that the client is bound by the acts and omissions of its
counsel. Pioneer 507 U. S. at 396-397; Nichols v. G.D. Searle &
Co., 991 F.2d 1195, 1202 (4th Cir. 1993).
Applying the criteria of Pioneer, I conclude that relief
cannot be granted in this case. The operator alleges that it is
laboring under an unusually heavy caseload. However, it has
furnished no data to support this contention and no information
to show that the number of cases it now has exceeds prior levels
of activity. Such a showing is essential in light of the fact
that the total number of actions pending before Commission Judges
has been declining. In addition, the operator's excuses of
corporate downsizing and multiple responsibilities for its
counsel cannot serve as a basis for relief. It appears that the
operator has consciously decided to allocate fewer resources to
mine safety litigation. Whatever the merits of that decision may
be in other contexts, in the instant matter the operator must
live with the consequences of its intentional actions. After
considering all the circumstances, I determine that on balance
the equities do not favor the operator. In Pioneer,
petitioner's counsel was late in part because he was experiencing
upheaval in his practice due to his withdrawal from his law firm.
However, the Court said that it gave little weight to that
circumstance and stated that the client must be held accountable
for the acts and omissions of its attorney. Pioneer, 507 U. S.
at 396-397. Following Pioneer, it has been held that oversight
due to corporate restructuring did not constitute excusable
neglect. United States v. RG & B Contractors, 21 F.3d 952 (9 Cir.
1994). If corporate downsizing were accepted as grounds for
relief here, it would have to be accepted in all cases involving
this operator for the foreseeable future.
This conclusion is also consistent with Commission
precedent. The Commission has held that the mere fact an operator
is involved in bankruptcy and cost cutting does not provide a
basis for relief. Green Coal Company, Inc., 18 FMSHRC 1594
(September 1996). The Commission also rejected confusion over
cases and the absence of the owner as reasons for reopening. The
Pit, 16 FMSHRC 2033 (October 1994). And like the Courts, the
Commission has held that the client is bound by the actions of
its attorney. Cannelton Industries, Inc., 18 FMSHRC 1597
(September 1996).
The Commission has allowed reopening, but the overriding
consideration in almost all those cases was the absence of
counsel for the operator. A. H. Smith Stone Company, 11 FMSHRC
796, 798 (May 1989); 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); James D. McMillen, Employed by Shillelagh Mining
Company, 13 FMSHRC 778, 779 (May 1991). I previously allowed
reopening under the principles of Pioneer in a case involving a
small pro se operator. R B Coal Company, 17 FMSHRC 2153 (November
1995).
In its motion the operator seeks relief under Rule 60(b) (1)
and (6). This request is unfounded. It is well established that
these subparagraphs are mutually exclusive. Pioneer, 507 U. S.
at 393; Information Systems and Network Corporation, supra at
796. The Commission has likewise recognized that relief is not
available under both sections simultaneously. Lakeview Rock
Products, Inc., 19 FMSHRC 26 (January 1997).
So too, the Solicitor does not appear conversant with
applicable law. She cites a 1950 decision by the Supreme Court
which dealt with Rule 60(b) (6). Ackermann v. United States, 340
U.S. 193. Nowhere does she cite Pioneer or any of the cases
that follow it. Nor does she evidence any awareness of the
differences between subparagraphs (1) and (6). The Solicitor's
reference to the fact that since January 1996 the operator has
been late five times in seeking reopening is not helpful. In two
cases, MSHA reopened and the operator dropped the remaining
three. No information was given regarding the circumstances of
these cases.
In light of the foregoing, it is ORDERED that the motion to
reopen be DENIED.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail & Telecopied)
Yoora Kim, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
Douglas N. White, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 414, Arlington, VA 22203
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P. O. Box
133, Brookwood, AL 35444
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