FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

                  WASHINGTON, D.C. 20004-1710                            

September 12, 2012

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 January 31, 2012, the Commission received from Beaver Excavating Company (“Beaver”) a motion seeking to reopen a settlement agreement and relieve it from the decision approving settlement entered against it.

            On June 8, 2011, Chief Administrative Law Judge Lesnick issued a Decision Approving Settlement (“Decision”) in response to the Conference and Litigation Representative’s (“CLR”) motion to approve the proposed settlement.

            Beaver asserts that the Decision does not accurately represent the settlement upon which the parties had agreed. In particular, Beaver believes that the Secretary of Labor accepted Beaver’s proposal to downgrade the level of the special assessment based on unwarrantable failure, but that the settlement order did not reflect this.

            The Secretary does not oppose the request to reopen for the purpose of adjudicating the operator’s claim, but notes that her non-opposition should not be construed as agreement with the operator’s claim. The Secretary also notes that the Mine Safety and Health Administration (“MSHA”) received payment for the amount Beaver was ordered to pay in the Decision, by check dated September 23, 2011.

            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).

            Having reviewed Beaver’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Decision. Accordingly, this case is remanded 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.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chair

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                               

                                                                                     Patrick K. Nakamura, Commissioner

Distribution:

Keith Ashmus, Esq.

Julie L. Pietrzen, Esq.

Frantz Ward, LLP

2500 Key Ctr.

127 Public Square

Cleveland, OH 44114-1230

kashmus@frantzward.com

jpietrzen@frantzward.com 

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