FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
SANDRA G. McDONALD :
:
v. :
: Docket No. WEVA 2014-387-D
GEORGE KING, MARK TOLER, :
GUARDCO SECURITY, LLC, and :
NEW TRINITY COAL, INC., :
as successor-in-interest to :
FRASURE CREEK MINING, LLC :
BEFORE: Jordan, Chairman; Young, Cohen, and Althen, Commissioners
ORDER
BY THE COMMISSION:
These proceedings were brought before the Commission pursuant to section 105(c)(3), of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3). The Complainant, Sandra McDonald, was a security guard. Her employers, George King and Mark Toler, had been contracted to provide security services to a mining company, Frasure Creek Mining, LLC. Her employers’ successor was Guardco Security, LLC (“Guardco”). The successor to Frasure Creek was New Trinity Coal, Inc. (“New Trinity”).
On November 21, 2016, the Administrative Law Judge assigned to this matter issued a Decision Approving Settlement, Dismissal Order and Order to Pay. 38 FMSHRC ___, No. WEVA 2014-387-D (Nov. 21, 2016). The settlement reached by the parties required both Guardco and New Trinity to make payments to the Complainant and to pay Complainant’s attorney fees. Id.; slip op. at 2-3. The terms of the order required New Trinity to pay Complainant $5,000 by October 30 and $10,000 by November 30, 2016. Id. at 2.
Complainant’s attorney noted in the motion to approve settlement and dismiss that, as of the date of the motion, New Trinity had failed to make the first required payment and requested that the proceedings remain open until payments had been made pursuant to the agreement. The Judge declined to do so, but did provide that “Counsel for McDonald may take whatever legal actions deemed appropriate to compel New Trinity to perform as required by this Order.” Id. at 3 n.4.
When the second payment date passed and New Trinity still had not made any payment, Complainant filed a motion to compel with the Administrative Law Judge, charging that New Trinity had refused to make the payments and demanding imposition of a $5,000 daily penalty and injunctive relief due to New Trinity’s “extreme negligence and lack of good faith.” Mot. to Compel at 3.
The Commission’s procedural rules provide that the Judge’s jurisdiction over a matter terminates upon the issuance of the Judge’s decision. 29 C.F.R. § 2700.69(b). The Judge thus sent the Motion to Compel to the Commission’s General Counsel. The Judge’s law clerk sent an e-mail to the parties stating that the issues in the motion had been referred to the Commission.
The decision of the Judge became the final decision of the Commission on January 3, 2017, 40 days after its issuance. 30 U.S.C. § 823(d)(1). Consequently, under these unique circumstances, we construe McDonald’s motion to compel as a motion to reopen pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. In reopening closed cases, the Commission has sought guidance in, and has applied “so far as practicable” and as appropriate, Rule 60(b), which deals with relief from judgments, orders or proceedings. See 29 C.F.R. § 2700.1(b). See also, e.g., M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1270-71 (Sept. 1986). For example, in reopening a case in aid of post-judgment compliance, the Commission relied on Rule 60(b)(6) (“any other reason that justifies relief”). See Johnson v. Lamar Mining Co., 10 FMSHRC 506 (Apr. 1988). See also Tolbert v. Chaney Creek Coal Corp., 12 FMSHRC 615, 618-19 (Apr. 1990); 12 James Wm. Moore et al., Moore's Federal Practice (3d. ed. 2015) ¶ 60.48. Accordingly, as an initial matter, we grant the Complainant’s motion to reopen.
However, in the present case, the attorneys for McDonald and New Trinity have informed the Commission that the required payments had been made after the Judge referred the Complainant’s Motion to Compel to the Commission’s General Counsel. Payment was made within 30 days of the Judge’s Decision Approving Settlement, Dismissal Order and Order to Pay. Thus, the need to compel payment or to order the injunctive relief sought has become moot, and the case is hereby dismissed.[1]
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ William I. Althen
William I. Althen, Commissioner
[1] While the Complainant sought a daily penalty for non-payment, and asserted that the Commission’s ability to fashion a remedy is “relatively unlimited,” we find it unnecessary to reach this issue. Mot. to Compel at 3.