FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 31, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, 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. (2006) (“Mine Act”). On December 14, 2012, the Commission received from Western Mesquite Mines, Inc. (“Western”) 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 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).

            MSHA’s record indicates that the proposed assessment was delivered on October 15, 2012, and became a final order of the Commission on November 14, 2012. Western’s counsel asserts that Western discussed the assessment with her on October 31, and requested by email late in the day on November 14 that she file a notice of contest. Counsel received the email request the next day, and faxed a contest form on November 15, 2012. The Secretary does not oppose the request to reopen, and cautions that he may oppose future penalty contests that are not timely filed.

            The Commission has made it clear that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). Moreover, as the Commission stated in M3 Energy Mining Co., 33 FMSHRC 1741, 1746 (Aug. 2011):

The fact that many of the inadequate and unreliable office procedures in these cases occurred at counsel’s office rather than the office of the operators does not affect our analysis. As the Commission noted in Keokee Mining, LLC, 32 FMSHRC 64, 66 n.1 (Jan. 2010), “[i]n requesting relief from a final order, a client may be held accountable for the acts and omissions of its attorney.” Keokee Mining relied on Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 397 (1993), where the Supreme Court made clear that when a party’s failure to meet a deadline was caused by the actions of its counsel, and the issue is whether the party would be exonerated on the basis of “excusable neglect,” the party would “be held accountable for the acts and omissions of [its] chosen counsel.” This is because the party “‘voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.’” Id. (quoting Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962)).

(Footnote omitted). In this case, Counsel submits that she “never received information on the date that [her] client received the proposed assessment and assumed it was on October 31.” Abrams affidavit at 1 (emphasis added). We urge counsel to discuss the assessment process and the importance of contest due dates with her clients, and verify contest due dates as soon as counsel receives the proposed assessment or discusses the issue with her clients. Counsel should take all steps necessary to ensure that penalty contests are filed timely.

            Having reviewed Western’s request and the Secretary’s response, in the interest of justice, we hereby reopen this matter and remand it 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.