FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

January 31, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On November 28, 2012, the Commission received a motion seeking to reopen two penalty assessments under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had become final orders of the Commission. The motion was filed by counsel for Duffy, Inc., on behalf of Dennis S. Bell and Duffy, Inc.’s late owner, Michael P. Duffy.

            Under the Commission’s Procedural Rules, an individual charged under section 110(c) has 30 days following receipt of the proposed penalty assessment within which to notify the Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 29 C.F.R. § 2700.27.

            We have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders. Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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).

            The record indicates that proposed assessment No. 00296177A was delivered on August 11, 2012, and became a final order of the Commission on September 10, 2012. Proposed assessment No. 00296178A was delivered on August 20, 2012, and became a final order of the Commission on September 19, 2012. Counsel asserts that Duffy, Inc.’s corporate secretary timely mailed both notices of contest on September 7, 2012. Counsel states that he discovered the delinquency while discussing a separate case with an attorney from the Office of the Solicitor. Duffy, Inc., further states that its owner, Michael P. Duffy, was killed in a plane crash on June 14, 2012, before MSHA issued the section 110(c) proposed assessment against him on July 27, 2012.

            The Secretary does not oppose the request to reopen, and notes that there is no record that MSHA received the penalty contest forms. The record also shows that delinquency notices were mailed on October 26, and November 5, 2012. The Secretary requests that the Commission rule on the reopening requests in an expedited manner so that the section 110(c) action against Mr. Duffy may be expeditiously vacated, and the section 110(c) action against Mr. Bell may be consolidated and litigated with the related action against the operator.

            Having reviewed these requests and the Secretary’s responses, in the interests of justice, we hereby reopen these matters and remand them 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Erik M. Dullea, Esq.

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

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., 25^th 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