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[DOCID: f:blue2ord.wais]
BLUE CIRCLE, INC.
May 11, 1998
CENT 97-154-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 11, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos: CENT 97-154-M
: CENT 97-155-M
v. : CENT 97-156-M
: CENT 97-157-M
BLUE CIRCLE, INC. : CENT 97-158-M
:
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY THE COMMISSION:
This consolidated civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq. (1994). On April 16, 1998, the Secretary of Labor and Blue
Circle, Inc. ("Blue Circle") filed a Joint Motion for
Modification of Settlement Agreement with the Commission's Office
of Administrative Law Judges. For the reasons discussed below,
we reopen this proceeding, treat the motion as a late-filed
petition for discretionary review, and remand the matter to the
judge.
On January 15, 1998, the Secretary of Labor and Blue Circle
filed with Administrative Law Judge Gary Melick a Motion to
Approve Disposition/Settlement. In the motion, the parties
requested approval of their agreement that Blue Circle pay
$7035.00 and that the proceeding be dismissed. Mot. at 2, 12.
In addition, the parties requested in the motion that the judge
sever Citation No. 7855673 from the proceeding and consolidate it
with Citation No. 4454558 in Docket No. CENT 97-194-M, and
incorporated by reference a Motion to Sever and Consolidate,
which was purportedly filed separately. Id. at 12. On February
10, 1998, Judge Melick issued a Decision Approving Settlement,
ordering Blue Circle to pay a penalty of $7035.00. The judge did
not address the parties' Motion to Sever and Consolidate.
On April 16, 1998, the Secretary and Blue Circle filed the
present motion requesting that the Commission modify the penalty
amount payable to the Secretary. Counsel explain that on March
18, 1998, counsel for the Secretary received a telephone call
from the assessment office at the Secretary of Labor's Mine
Safety and Health Administration ("MSHA") stating that the amount
contained in the final settlement agreement was incorrect. Jt.
Mot. at 2. Upon review, Secretary's counsel discovered that she
had failed to include the settlement amount for
CENT 97-158-M in her calculations, resulting in a $1771.00
shortfall in the final settlement amount. Id. Accordingly, the
parties request that the Commission add the penalty amount for
CENT 97-158-M, so that the total penalty assessed - $8806.00 -
would reflect the settlement reached by the parties. Id.
Our review of the record does not make certain that the
penalty amount payable to the Secretary according to the
settlement agreement equals the sum of $8806.00. Also, the
present motion does not discuss whether Citation No. 7855673 was
severed as the parties had previously requested. We have
determined administratively that a separate Motion to Sever and
Consolidate was never filed in these proceedings or in Docket No.
CENT 97-194-M. Moreover, it appears that Citation No. 7855673
has not been severed and consolidated with Citation No. 4454558
in Docket No. CENT 97-194-M. Furthermore, on February 11, 1998,
Judge Melick issued an order approving a settlement agreement in
Docket No. CENT 97-194-M.
The judge's jurisdiction over this case terminated when his
decision approving the settlement was issued on February 10,
1998. 29 C.F.R. � 2700.69(b). 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); 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). The parties' motion was
received by the Commission after the judge's decision had become
a final decision of the Commission.
Relief from a final Commission judgment or order is
available to a party under Fed. R. Civ. P. 60(b)(1) in
circumstances such as mistake, inadvertence, or excusable
neglect. Fed. R. Civ. P. 60(b)(1);[1] see also 29 C.F.R.
� 2700.1(b) (Federal Rules of Civil Procedure apply "so far as
practicable" in the absence of applicable Commission rules);
Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). We are
unable to evaluate the merits of the parties' position on the
basis of the present record. In the interest of justice, we
reopen the proceedings, treat the parties' motion as a late-filed
petition for discretionary review requesting relief from a final
Commission decision, and excuse its late filing. See Kelley
Trucking Co., 8 FMSHRC 1867, 1868-69 (Dec. 1986); see also
General Chem. Corp., 18 FMSHRC 704, 705 (May 1996).
**FOOTNOTES**
[1]: Rule 60(b) provides in pertinent part: "On motion and
upon such terms as are just, the court may relieve a party . . .
from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect . . . ."
We remand the matter to the judge, who shall dispose of the
parties' motion and modify his decision as appropriate. Cf.
General Chem. Corp., 18 FMSHRC 704, 705 (May 1996) (amending
judge's dismissal order); Martin Marietta Aggregates, 16 FMSHRC
189, 190 (Feb. 1994) (amending judge's decision approving
settlement to reflect agreement reached by parties). The judge
may afford the parties an opportunity to further amend their
motion.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Mary K. Schopmerer, Esq.
Office of the Solicitor
U.S. Department of Labor
525 South Griffin St., Suite 501
Dallas, TX 75202
C. Gregory Ruffenach, Esq.
Ruffenach Law Offices
1675 Broadway, Suite 1800
Denver, CO 80202
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041