FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 14, 2012

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On December 22, 2011, the Commission received from Stommes Construction, Inc. (“Stommes”) four motions seeking to reopen four 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), and one motion seeking to relieve it from the order of default entered against it.

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).

The Commission has exercised jurisdiction over final orders arising from failure to respond to show-cause orders, see, e.g., FMC Corporation, 34 FMSHRC 1292, 1293 (June 2012), as well as orders that have become final under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). 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”); see also JWR, 15 FMSHRC at 787.

In deciding to reopen final orders in the interests of justice, we have held 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). In all cases under Rule 60(b), any motion for relief 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 record indicates that proposed assessment No. 000186661 was delivered on June 10, 2009, signed for by T. Miller, and became a final order of the Commission on July 10, 2009. A notice of delinquency was mailed on August 26, 2009, and the case was referred to the U.S. Department of Treasury for collection on December 10, 2009. Proposed assessment No. 000236955 was delivered on November 9, 2010, signed for by L. Miller, and became a final order of the Commission on December 9, 2010. A notice of delinquency was mailed on February 10, 2011, and the case was referred to the U.S. Department of Treasury for collection on May 12, 2011. Proposed assessment No. 000230600 was delivered on September 9, 2010, signed for by J. Miller, and became a final order of the Commission on October 11, 2010. A notice of delinquency was mailed on December 1, 2010, and the case was referred to the U.S. Department of Treasury for collection on March 17, 2011. Proposed assessment No. 000248171 was delivered on March 8, 2011, signed for by L. Miller, and became a final order of the Commission on April 7, 2011. A notice of delinquency was mailed on May 23, 2011, and the case was referred to the U.S. Department of Treasury for collection on September 8, 2011.

In LAKE 2011-627-M, which involves proposed assessment No. 000250674, Stommes contested the proposed assessment, but failed to answer the Secretary’s Petition for Assessment of Civil Penalty, issued on June 10, 2011. On August 22, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause, which was delivered on August 26, and which by its terms became a Default Order on September 22 when the operator failed to file an answer within 30 days.

In all five cases, Stommes asserts that it did not receive MSHA’s proposed assessments. In three of the cases, those involving proposed assessments Nos. 000186661, 000236955, and 000230600, the motions to reopen were filed more than one year after becoming final orders. Therefore, those motions are untimely, and are denied. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

The Secretary opposes all of the requests to reopen and asserts that the operator identified no exceptional circumstances warranting reopening. In support of her opposition, the Secretary also submitted FedEx online tracking reports for three of the penalty assessments at issue. The Secretary further states that Stommes never responded to any of the delinquency notices, and the only payments received by MSHA over the past several years have been made through the Treasury collection efforts.

Moreover, the Secretary notes that Stommes filed its reopening request over seven months to two-and-a-half years after the proposed assessments became final Commission orders. Finally, the Secretary states that the operator’s delinquency record, which shows that it has repeatedly disregarded final penalty assessments, indicates that it has not acted in good faith.

Stommes has not replied to the Secretary’s opposition to its motion. Stommes’ sole ground in seeking relief from the final order in proposed assessment No. 000248171 (as in Nos. 000186661, 000236955, and 000230600) is that it did not receive the proposed assessments. However, in light of the Secretary’s unrebutted evidence in the form of a FedEx tracking slip that proposed assessment No. 000248171 was delivered and signed for on March 8, 2011 by L. Miller, we conclude that Stommes has failed to prove that the assessment was not properly delivered, and we thus conclude the operator received the assessment.

Regarding Stommes’ failure to respond to the Show Cause Order in LAKE 2011-627-M, proposed assessment No. 000250674, Commission records include a United States Postal Service receipt indicating that the show cause order was received on August 26, 2011. Stommes’ failure to respond to the Chief Judge’s show cause order rendered it a default order. Stommes has provided no good reason to reopen it.

            Finally, it is well recognized in federal jurisprudence that the issue of whether the movant acted in good faith is an important factor in determining the existence of excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006). Likewise, the Commission has recognized that a movant’s good faith, or lack thereof, is relevant to a determination of whether the movant has demonstrated mistake, inadvertence, surprise or excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure. M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3 FMSHRC 314, 315 (Feb. 1981). Stommes’ failure to respond to the Secretary’s argument that Stommes’ delinquency record demonstrates bad faith provides additional support for our conclusion that Stommes has not met its burden of establishing entitlement to extraordinary relief.

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