FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

         WASHINGTON, D.C. 20004-1710                       

September 14, 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 October 26, 2011, the Commission received from MMR Constructors, Inc. (“MMR”) 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).

            The record indicates that the proposed assessment was delivered on August 31, 2011, and became a final order of the Commission on September 30, 2011. MMR asserted that it was waiting on documentation from the project’s site in order to fully investigate the matter and contest this citation. The Secretary opposed the request to reopen, stating that MMR’s legal department chose not to contest the proposed assessment by the contest deadline, which constituted a wilful default.

            On January 23, 2012, the Commission sent MMR a letter asking it to explain why it filed its motion to reopen more than 30 days after discovering that the penalty was not timely contested, what office procedures were implemented to prevent future defaults, and why it chose to wilfully default by not contesting timely. In response, MMR asserts that due to unusual circumstances, its safety director was away from the office during the month of September 2011. The safety director only forwarded the proposed assessment to MMR’s legal department on October 3, 2011, upon his return to the office. MMR states that the safety director has never previously been away from his office for an extended period of time, and that once this isolated incident was identified new procedures were implemented to prevent such mistakes in the future. Moreover, MMR maintains that this citation was issued to the wrong company. The Secretary does not oppose the revised request to reopen, and urges the operator to take steps to ensure that future penalty contests are timely filed.

            Having reviewed MMR’s request and the Secretary’s response, in the interests 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.

                                                                                    /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:

Holly Harris, Esq.

M M R Group, Inc. & Subsidiaries

P.O. Box 84210

Baton Rouge, LA 70884-4210

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