FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 18, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

By Duffy, Young, and Nakamura, Commissioners:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On March 22, 2011, the Commission received from Graymont (PA) Inc. (“Graymont”) 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 Graymont timely paid the full penalty amount, in reliance on the explanation provided by the citing inspector. However, Graymont states it decided to contest the citation based on the opinion of a second inspector who led Graymont to question whether the cited condition constituted a violation. In response, the Secretary states that she does not oppose the request to reopen.

            Having reviewed Graymont’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/ Michael F. Duffy                                                                                   

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura                                                                             

 Patrick K. Nakamura, Commissioner

Chairman Jordan, and Commissioner Cohen, dissenting:

            Graymont received a penalty assessment, paid the full penalty amount, and now asks the Commission to reopen the case to permit it to contest one of the three penalties. The sole rationale for reopening presented by the operator is that after it paid the penalty, a second inspector suggested that Graymont might not have committed a violation.

            As the majority notes, section 105(a) of the Mine Act states that if an operator fails to notify the Secretary that it wishes to contest a proposed assessment of penalty within 30 days of receipt of the assessment, it is deemed a final order of the Commission. 30 U.S.C. § 815(a). Our colleagues also correctly point out that Rule 60(b) of the Federal Rules of Civil Procedure may be used to guide the Commission in evaluating motions to reopen such final orders. However, Rule 60(b)(1) (the subsection of Rule 60(b) cited by the majority) only permits reopening on the basis of mistake, inadvertence, or excusable neglect.

            None of those factors apply in this case, which simply involves an operator that intentionally paid a penalty and now, upon reflection, regrets that decision and wishes to contest.

The circumstances presented here do not indicate that mistake, inadvertence, or excusable neglect occurred. See, e.g., Brzeczek v. Centerior Energy, No. 99-3900, slip op. at 1-2 (6th Cir. June 20, 2000) (denying relief under Rule 60(b)(1) because the plaintiff was “left with only her own change of heart as a basis for seeking relief from the agreed judgment” and “[a] change of mind is not an adequate basis to vacate a judgment pursuant to Rule 60(b)”). Consequently, there is no basis under Rule 60(b) to reopen this final order. Thus we would deny the requested relief.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Graymont (PA) Inc.

965 E. College Avenue

Pleasant Gap, PA 16823

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

US Department of Labor

1100 Wilson Blvd. 25^th Floor

Arlington, VA 22209

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