FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 16, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 August 12, 2011, the Commission received from Frasure Creek Mining, LLC (“Frasure”) motions made by counsel seeking to reopen two penalty assessment proceedings and relieve it from the orders of default entered against it.

            On March 15, 2011, Chief Judge Lesnick issued two Orders to Show Cause and Orders of Default in response to Frasure’s failure to answer the Secretary’s January 25, 2010 Petitions for Assessment of Civil Penalty. The judge ordered the operator to file its answers within 30 days or it would be in default.

            Frasure asserts that it did not receive the Orders to Show Cause or the Secretary’s previously filed Petitions for Assessment of Civil Penalty because they were apparently sent to Frasure’s corporate office. Frasure had asked MSHA to serve the petitions on its counsel, and counsel had entered an appearance in a related contest proceeding before the Commission. Frasure further asserts that it was not aware the petitions were filed until it received the delinquency notice dated July 29, 2011. The Secretary does not oppose the motions to reopen.

            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 conclude that relief under Rule 60(b) is warranted in these cases because the Orders to Show Cause were inadvertently sent to Frasure’s corporate office, instead of to its counsel as it had anticipated. Consequently, having reviewed Frasure’s request and the Secretary’s response, in the interest of justice, we hereby reopen these proceedings and vacate the Orders of Default. Accordingly, these cases are 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. Frasure shall file an Answer to the Show Cause Orders within 30 days of the date of this order.

/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:

Christopher D. Pence, Esq.

Guthrie, & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333

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