FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

January 23, 2014

SECRETARY OF LABOR, ADMINISTRATION (MSHA) MINE SAFETY AND HEALTH        v. GILA ROCK PRODUCTS, LLC

Docket No. WEST 2013-1081-M              A.C. No. 02-02977-287801

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On August 27, 2013, the Commission received from Gila Rock Products, LLC (“Gila Rock”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

            Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on May 8, 2012, signed for by C. Montgomery, and became a final order of the Commission on June 7, 2012. Gila Rock asserts that its counsel mailed a pre-penalty notice of contest to MSHA, which was not received. This contest was not filed with the Commission and was not assigned a docket number. Gila Rock further states that its owner, Norman Montgomery, was not served with the proposed assessment. Gila Rock’s counsel asserts that he discovered this delinquency on July 22, 2013 after contacting MSHA.

            The Secretary opposes the request to reopen and notes that the delinquency notice mailed to the operator on July 24, 2012, was returned undelivered, and the case was referred to the U.S. Department of Treasury for collection on November 8, 2012. The Secretary notes that Cheryl Montgomery is listed on Gila Rock’s Mine ID Report as one of its owners, and it is the operator’s responsibility to adequately communicate with its counsel.

            Due to the extraordinary nature of reopening a penalty that has become final, the operator has the burden of showing that it should be granted such relief through a detailed explanation of its failure to timely contest the penalty and any delays in filing for reopening. The Commission considers the entire range of factors relevant to determining mistake, inadvertence, excusable neglect, or other good faith reason for reopening. Further, Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b) motion shall be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable neglect, not more than one year after the judgment, order, or proceeding was entered or taken. Fed. R. Civ. P. 60(c).

            This motion to reopen was filed more than one year after becoming a final order. Therefore, under Rule 60(c), Gila Rock’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

            Accordingly, we deny Gila Rock’s motion with prejudice.

/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/ Patrick K. Nakamura                  

Patrick K. Nakamura, Commissioner

/s/ William I. Althen                    

                                                                                    William I. Althen, Commissioner

Distribution

David A. McCarville, Esq.

Nussbaum, Gillis & Dinner, P.C.

14850 N. Scottsdale Rd., Suite 450

Scottsdale, AZ 85254

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