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 August 2, 2012, the Commission received from Louisa Construction Company (“Louisa”) a motion seeking to reopen three penalty assessments that had become final orders 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).

            The record indicates that the proposed assessments were delivered on December 1, 2011, signed for by L. Lyles, and became final orders of the Commission on January 2, 2012. MSHA mailed delinquency notices on February 15, 2012, and Louisa mailed late contests on March 23, 2012. On April 3, 2012, MSHA advised Louisa that the contests were untimely, and on June 7, 2012 referred the assessments to the Department of Treasury for collection. Louisa asserted that its previous office clerk had no experience contesting assessments, and that the new office assistant contacted MSHA to request copies of all the citations to be reviewed.

            The Secretary opposed the requests to reopen, stating that they did not show exceptional circumstances. Moreover, the Secretary noted that Louisa did not explain why it took more than five months to request reopening after it received the delinquency notices.

            On November 13, 2012, the Commission sent Louisa a letter asking it to explain the delay in filing the motion to reopen and what office procedures were implemented to prevent future defaults. In response, Louisa’s new assistant states that she began overseeing MSHA correspondence in March 2012 and immediately mailed late contests expressing the operator’s concerns. In the assistant’s subsequent correspondence with MSHA there have been mistakes in citation and docket numbers, which caused further delay. Louisa maintains that new procedures were implemented to prevent future defaults.

            Having reviewed Louisa’s requests and the Secretary’s response, 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.

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Patrick K. Nakamura, Commissioner

Distribution

Hermie Evans

Louisa Construction Comipany

P.O. Box 178

Louisa, KY 41230

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