FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

January 23, 2014

 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

 

        v.

 

 

E & G MASONRY STONE #2

 

 

 

              Docket No. CENT 2013-461-M

              A.C. No. 41-04413-269654

 

 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On May 9, 2013, the Commission received from E & G Masonry Stone #2 (“E&G”) a motion seeking to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.§ 815(a).

 

            Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C.§ 815(a).

 

            We have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). 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”); JWR, 15 FMSHRC at 787. 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 permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

 

            Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on October 18, 2011, and became a final order of the Commission on November 17, 2011. E&G asserts that it was unaware that there were multiple penalty assessments stemming from the same inspection. E&G discovered its error after receiving a delinquency notice dated January 3, 2012. The Secretary opposes the request to reopen and states that the delinquency was referred to the U.S. Department of Treasury for collection on April 19, 2012, and was paid by check dated March 22, 2013. The Secretary further notes that on March 20, 2012, counsel for E&G filed a motion to reopen a penalty assessment stemming from the same inspection, but did not request to reopen the matter before us. See E&G, 34 FMSHRC 3044 (Dec. 2012).

 

            Due to the extraordinary nature of reopening a penalty that has become final, the operator has the burden of showing that it should be granted such relief through a detailed explanation of its failure to timely contest the penalty and any delays in filing for reopening. The Commission considers the entire range of factors relevant to determining mistake, inadvertence, excusable neglect, or other good faith reason for reopening. Further, Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b) motion shall be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable neglect, not more than one year after the judgment, order, or proceeding was entered or taken. Fed. R. Civ. P. 60(c).

 

            This motion to reopen was filed more than one year after becoming a final order. Therefore, under Rule 60(c), E&G’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

 

 

            Accordingly, we deny E&G’s motion with prejudice.


 

 

 

                                                                                    /s/ Mary Lu Jordan                   

                                                                                    Mary Lu Jordan, Chairman

 

 

 

                                                                                    /s/Michael G. Young                   

                                                                                    Michael G. Young, Commissioner

 

 

 

                                                                                    /s/ Robert F. Cohen, Jr.                 

                                                                                    Robert F. Cohen, Jr., Commissioner

 

 

 

                                                                                    /s/ Patrick K. Nakamura                                                                                                            

Patrick K. Nakamura, Commissioner

                                                                                                                                                           

 

 

                                                                                    /s/ William I. Althen                    

                                                                                    William I. Althen, Commissioner

 

Distribution

 

Nicholas W. Scala, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

 

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710