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 December 9, 2011, the Commission received from Barrick Turquoise Ridge, Inc. (“Barrick”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On July 21, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Barrick’s failure to answer the Secretary’s February 22, 2011 Petition for Assessment of Civil Penalty. The Commission did not receive Barrick’s answer within 30 days, so the default order became effective on August 22, 2011.

            Barrick asserts that its counsel did not receive the assessment petition. Moreover, Barrick states that the Show Cause Order was mailed to its counsel’s previous office address, which caused a delay in its receipt. Counsel for Barrick submits that he prepared an answer, but placed it in a file instead of mailing it. Counsel discovered this delinquency on or about September 29, 2011, and attempted to contact the operator for about two months, until late November, to confirm the operator desired to continue contest proceedings and file this motion to reopen.

            The Secretary does not oppose the request to reopen but submits a certified mail receipt showing that the penalty petition was delivered to the operator on February 24, 2011. The Secretary bases her non-opposition solely on the confusion due to the counsel’s office move and change of address, and not on the failure of counsel’s inadequate office procedures. The Secretary urges counsel to take all steps necessary to ensure future timely contests, and cautions that she may oppose future motions to reopen that are caused by this same failure in office procedures.

            The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 2700.69(b). 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).

            We note that Barrick and its counsel have a history of delinquencies based on miscommunication and leaving unfiled contests in file cabinets. See Barrick Turquoise Ridge, Inc., 33 FMSHRC 2684, 2685 (Nov. 2011); 32 FMSHRC 853, 854 (Aug. 2010). The Commission has made it clear that where a failure results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Oak Grove, 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, the record shows that copies of the Show Cause Order were delivered to the operator and its counsel on July 25, 2011 and July 28, 2011, respectively. Barrick’s counsel filed a change of address notice with the Commission on August 3, 2011, after receiving the Show Cause Order. We urge Barrick and its counsel to take all steps necessary to ensure that responses to MSHA and the Commission are filed in a timely manner.

            Having reviewed Barrick’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Default Order. 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:

William K. Doran, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street NW, Suite 1000

Washington, DC 20006

william.doran@odnss.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