FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 27, 2013

BEFORE: Jordan, Chairman; Young 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 September 4, 2012, the Commission received from Livingston Stone Company (“Livingston”) 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).

            MSHA’s records indicate that the proposed assessment was delivered on February 6, 2012, and became a final order of the Commission on March 7, 2012. Livingston’s safety director asserts that after receiving the citations in December 2011, he discussed with counsel Livingston’s intent to contest the proposed assessment. After receiving the proposed assessment, the safety director timely emailed it to counsel along with copies of the citations, photographs, and Livingston’s defenses. Livingston’s counsel states that she believed that Livingston had already filed the contest. Counsel did not discuss this assessment with her client until Livingston received a collection notice from the U.S. Department of Treasury, dated August 15, 2012.

            The Secretary opposes the request to reopen and notes that MSHA mailed a delinquency notice on April 23, 2012, and the operator does not explain why it took four months to request reopening. The Secretary points out that the contest form Livingston forwarded to counsel was not properly marked for contest, and that neither the remittance coupon nor the contesting official information form was filled out. Under the circumstances, the Secretary maintains that counsel should have contacted her client to confirm the operator’s intent. The Secretary further notes that the counsel’s office does not appear to have an internal tracking system to monitor and ensure that contests are timely filed. Moreover, under well-established case law, attributing the failure to timely contest to the counsel rather than the operator, is not an adequate basis for reopening.

            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. Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). Moreover, as the Commission stated in M3 Energy Mining Co., 33 FMSHRC 1741, 1746 (Aug. 2011):

The fact that many of the inadequate and unreliable office procedures in these cases occurred at counsel’s office rather than the office of the operators does not affect our analysis. As the Commission noted in Keokee Mining, LLC, 32 FMSHRC 64, 66 n.1 (Jan. 2010), “[i]n requesting relief from a final order, a client may be held accountable for the acts and omissions of its attorney.” Keokee Mining relied on Pioneer Investment Services Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 397 (1993), where the Supreme Court made clear that when a party’s failure to meet a deadline was caused by the actions of its counsel, and the issue is whether the party would be exonerated on the basis of “excusable neglect,” the party would “be held accountable for the acts and omissions of [its] chosen counsel.” This is because the party “‘voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.’” Id. (quoting Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962)).

(Footnote omitted). In this case, we conclude that the lack of any procedure to confirm that the required paperwork was timely filed represents an inadequate or unreliable internal processing system. We note that although the operator implemented new procedures to prevent future defaults, this failure occurred in its counsel’s office. Counsel should take all steps necessary to ensure that penalty contests are filed timely.

            Having reviewed Livingston’s request and the Secretary’s response, we conclude that Livingston has failed to establish good cause for reopening the proposed penalty assessment. Accordingly, we hereby deny Livingston’s motion to reopen.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Diana Schroeher, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corriidor Place, Suite D

Beltsville, MD 20705

dschroeher@gmail.com

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710