Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

H & B CRUSHING, LLC

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Docket No. WEST 2011-874-M
A.C. No. 10-02000-226900

Docket No. WEST 2011-875-M
A.C. No. 10-02000-215365

Docket No. WEST 2011-876-M
A.C. No. 10-02000-198804

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 April 19, 2011, the Commission received from H & B Crushing, LLC (“H&B”) a motion made by counsel 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).

This case involves a motion to reopen three assessments which have become final orders, No. 000226900 dated July 29, 2010, No. 000215365 dated March 31, 2010, and No. 000198804 dated September 30, 2009.

The record indicates that proposed assessment No. 000226900 was delivered on August 3, 2010, signed for by M. Hall, and became a final order of the Commission on September 2, 2010. Notice of delinquency was mailed on October 26, 2010, and the case was referred to the U.S. Treasury for collection on February 3, 2011.

Proposed assessment No. 000215365 was delivered on April 7, 2010, signed for by S. Hart, and became a final order of the Commission on May 7, 2010. Notice of delinquency was mailed on June 30, 2010, and the case was referred to the U.S. Treasury for collection on October 21, 2010.

Proposed assessment No. 000198804 was delivered on October 7, 2009, signed for by T. Davis, and became a final order of the Commission on November 6, 2009. Notice of delinquency was mailed on December 23, 2009, and the case was referred to the U.S. Treasury for collection on April 8, 2010.

H&B asserts it did not receive these three proposed penalty assessments because they were mailed not to its business address but to a restaurant in Cascade, Idaho. H&B further asserts it only became aware that final orders were issued in these cases when it received a different proposed assessment, No. 000230518, dated September 1, 2010, which listed these case numbers as outstanding balances. The motion to reopen was filed on April 19, 2011.

The Secretary opposes the request to reopen and notes that these proposed assessments were mailed to the operator’s address of record in Cascade, Idaho, the same address that appears on all of the proposed assessments sent to H&B in the past three years. The Secretary states it is H&B’s responsibility to file an updated address of record and H&B’s failure to fulfill its legal responsibilities does not constitute excusable neglect warranting reopening. Moreover, the Secretary notes that these assessments appeared as outstanding balances on a contest form for another assessment, No. 000230518, filed by H&B on September 27, 2010. The Secretary further questions why H&B made no attempt to explain the long delay between receiving the delinquency notices and filing its motion to reopen, ranging from six to sixteen months. Additionally, the Secretary asserts that proposed assessment No. 000198804 must be denied because the operator waited more than a year after the assessment became a final order to request reopening. Finally, the Secretary has provided evidence that three other proposed assessments mailed to the same address were signed for and were timely paid.

H&B has not replied to the Secretary’s opposition to its motion. We encourage parties seeking reopening to provide further information in response to pertinent questions raised in the Secretary’s response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June 2008); Highland Mining Co., 31 FMSHRC 1313, 1316 n.3 (Nov. 2009). We would expect that in a case where an operator has claimed that it did not receive proposed assessments, and the Secretary submits evidence that the proposed assessments were delivered, the operator would respond to the Secretary’s evidence, especially where the Secretary’s evidence includes the representation that the operator received other assessments delivered to the same address.

H&B’s sole ground for making this motion is that the three proposed assessments were not delivered to it. In light of the Secretary’s unrebutted evidence that (1) the assessments were delivered and signed for, (2) four other proposed assessments were delivered to the same address and acknowledged by H&B, and (3) the assessments were sent to H&B’s address of record, we conclude that H&B has failed to prove that the assessments were not properly delivered.

Moreover, 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. 000198804 was filed more than a year after it became a final order. Therefore, with regard to proposed assessment No. 000198804, H&B’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

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