FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 20, 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 March 5, 2012, the Commission received from RoxCoal, Inc. (“RoxCoal”) two motions in cases in which Administrative Law Judge Janet Harner had issued decisions approving settlement dated August 11 and October 19, 2011. In its motions, RoxCoal asks the Commission to dismiss any interest or penalties erroneously accrued in these dockets.

            RoxCoal asserts that it did not receive the judge’s Orders to Pay and Decisions Approving Settlement, dated August 11 and October 19, 2011. RoxCoal paid the settlement amounts, but asks the Commission to dismiss any penalties accrued by the U.S. Department of Treasury collection efforts.

            The Secretary does not oppose the requests to reopen, but notes that the Decisions were mailed to RoxCoal’s legal counsel’s address of record. The Secretary states that MSHA mailed delinquency notices to RoxCoal on November 16, 2011 and February 6, 2012. Assessment Case No. 000175710 (in Docket No. PENN 2009-374) was referred to Treasury for collection on February 16, 2012, where additional administrative costs and collection fees were charged. The Secretary notes that MSHA received two payments for the agreed upon settlement amounts, by checks dated March 1 and 16, 2012. The Secretary also states that, in Docket No. PENN 2009-49, the motion to reopen should be dismissed as moot because the penalties have been paid and the case closed.

            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 orders here have become final decisions 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).

            Having reviewed RoxCoal’s requests and the Secretary’s responses, in the interests of justice, we hereby reopen Docket No. PENN 2009-374 for the limited purpose of giving MSHA the authority to recall any collection actions by the U.S. Department of Treasury. RoxCoal’s motion in Docket No. PENN 2009-49 is denied as moot.