FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 22, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 November 21, 2011, the Commission received from Mid-Tex Minerals, Inc. (“Mid-Tex”) a motion seeking to reopen a settlement agreement and relieve it from the order to pay entered against it.

            On October 28, 2011, Chief Administrative Law Judge Lesnick issued a Decision Approving Settlement and an Order to Pay in response to the Conference and Litigation Representative’s (“CLR”) motion to approve the proposed settlement.

            Mid-Tex asserts that it did not understand that its telephone discussions with the CLR were considered a final response to the settlement agreement. Mid-Tex further states that it had contested and requested a hearing on this matter, but was never contacted by MSHA. It appears from Mid-Tex’s enclosed documents that it sent a letter, which was received by MSHA on August 17, 2011, stating that the discussion with the CLR had not been satisfactory.

            The Secretary asserts that the CLR in this case drafted a settlement agreement and proposed order based on his discussion with the operator, and sent the proposed agreement and order to the operator. After waiting for five days and having received no response, the CLR submitted the settlement agreement and proposed order to the Commission. It appears that the CLR mailed the documents to Mid-Tex on August 15, 2011, and filed them with the Commission on August 19, 2011. Because there appears to be a factual dispute about what happened in this case, the Secretary requests that the Commission assign this case to the Chief Administrative Law Judge for resolution of that dispute.

            Under the Mine Act and the Commission’s procedural rules, relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final decision of the Commission.

            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, 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”); Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). 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).

            Having reviewed Mid-Tex’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding, vacate the decision, and remand this matter 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.

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Mary Lu Jordan, Chairman

____________________________________

Michael F. Duffy, Commissioner

____________________________________

Michael G. Young, Commissioner

____________________________________

Robert F. Cohen, Jr., Commissioner

____________________________________

Patrick K. Nakamura, Commissioner

Distribution:

Frank D. Shemanski

Owner

Mid-Tex Minerals, Inc.

P. O. Box 389

Flatonia, TX 78941

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

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021