FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 12, 2011

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 August 9, 2011, and August 31, 2011, the Commission received from Hoover Excavating, Inc. (“Hoover”) three motions made by counsel seeking to reopen three penalty assessments that had become final orders 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 proposed assessment No. 000237487 became a final order of the Commission on December 16, 2010. A notice of delinquency was mailed on February 10, 2011. Proposed assessment No. 000248691 became a final order of the Commission on April 14, 2011. A notice of delinquency was mailed on May 31, 2011. Both motions to reopen were filed on August 3, 2011.

            Proposed assessment No. 000190325 was delivered on July 14, 2009, signed for by R. Hoover, and became a final order of the Commission on August 13, 2009. A notice of delinquency was mailed on September 30, 2009, and the case was referred to the U.S. Department of Treasury for collection on January 21, 2010. The motion to reopen was filed on August 29, 2011.

            In all three cases, Hoover asserts that its owner was away from the office and relied on his assistants to file the paperwork correctly. Hoover further states that its owner was unable to confirm that the contests were filed in a timely manner.

            The Secretary opposes the requests to reopen and notes that the operator makes no showing of exceptional circumstances that warrant reopening. The absence of any internal procedure to confirm that the required paperwork was filed does not constitute an adequate excuse. Moreover, the Secretary notes the operator’s failure to explain why it waited approximately two months to two years after it was notified of its delinquency to request reopening.

            In its reply to the Secretary’s opposition, Hoover states that it was under the reasonable belief that the citations were properly contested. In his affidavit, Hoover’s owner further claims that he was never notified that the contests were untimely, until a contractor informed him of his delinquent citations.

            The Commission has made it clear that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). In this case, we conclude that the failure to follow up on the proposed assessments to see that they were properly processed and timely contested represents an inadequate or unreliable internal processing system, as the Secretary has alleged. Sloss Industries, Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007); Gibbs v. Air Canada, 810 F.2d 1529, 1537 (11th Cir. 1987). We also note that this type of failure appears to be part of a pattern for Hoover, as shown by the fact that the same failure occurred three times in the past two years.

            Moreover, in considering whether an operator has unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has passed between an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC at 1316-17 (holding that motions to reopen filed more than 30 days after receipt of notice of delinquency must explain the reasons why the operator waited to file a reopening request, and lack of explanation is grounds for the Commission to deny the motion). Here, the unexplained delay in responding to MSHA’s delinquency notice amounted to six months in proposed assessment No. 000237487. The operator also waited two months in proposed assessment No. 000248691 before seeking relief. Hoover has not provided an explanation for filing its motions to reopen more than 30 days after receiving the delinquency notices.

            Finally, we have also held that a Rule 60(b) motion shall be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable neglect under subsections (1), (2), and (3) of the rule, not more than one year after the judgment, order, or proceeding was entered or taken. The motion to reopen in the case of proposed assessment No. 000190325 was filed more than a year after it became a final order. Therefore, with regard to proposed assessment No. 000190325, Hoover’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

            Having reviewed Hoover’s requests and the Secretary’s responses, we conclude that Hoover has failed to establish good cause for reopening the proposed penalty assessments and deny its motions with prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Katie Ireland, Esq.

Ireland & Ireland, P.C.

P. O. Box 273

Banks, OR 97106

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