<DOC>
[DOCID: f:ce2001316c.wais]
ROGERS GROUP, INCORPORATED
March 20, 2002
CENT 2001-316-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
March 20, 2002
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. CENT 2001-316-M
v. : A.C. No. 03-00791-05535
:
ROGERS GROUP, INCORPORATED :
BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act"). On January 9, 2002, the Commission
received from Rogers Group, Inc. ("Rogers") a request to vacate
an Order of Default issued on December 4, 2001, by Chief
Administrative Law Judge David F. Barbour. R. Mot. at 1. In
the default order, the judge dismissed this civil penalty
proceeding for the failure of Rogers to answer the Petition for
Assessment of Penalty filed by the Secretary of Labor on August
13, 2001, or the judge's Order to Respondent to Show Cause
issued on September 28, 2001. The judge assessed civil
penalties in the sum of $1,500, proposed by the Secretary.
The judge's jurisdiction in this matter terminated when
his decision was issued on December 4, 2001. 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). Rogers filed its request
with the Commission on January 9, 2002, six days past the
30-day deadline. Because the Commission did not direct review
on its own motion, the judge's default order became a final
decision of the Commission 40 days after its issuance. Id.
When considering whether relief from a final Commission
decision is appropriate, the Commission has found guidance in,
and has applied "so far as practicable," Fed. R. Civ. P. 60(b).
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"); Jim Walter Res., Inc., 15 FMSHRC 782, 787 (May
1993). In accordance with Rule 60(b)(1), we previously have
afforded a party relief from a final order of the Commission on
the basis of inadvertence or mistake. See Gen. Chem. Corp., 18
FMSHRC 704, 705 (May 1996).
In its request, Rogers, apparently proceeding pro se,
contends that it submitted a green card requesting a hearing but
that, "due to reasons unclear to us at this time," it failed to
answer the Secretary's petition for penalty assessment or the
judge's show cause order. R. Mot. at 1.[1] Although Rogers does
not explain in its request why it failed to appeal the default
order to the Commission before the 30-day deadline, the record
indicates that there may have been some confusion as to the
correct address for the operator. The record shows that the
default order was first sent by the Commission to Elliott at
the address listed for Rogers on the Proposed Penalty Assessment
but it was returned undelivered. In returning the undelivered
envelope containing the default order to the Commission, the
U.S. Postal Service stamped Rogers' new address on the front of
the envelope. The Commission then sent the default order to
Rogers' new address and the return receipt indicates that it was
received by the operator on December 26, 2001, twenty-two days
after the default order was first issued.
On January 14, 2002, the Commission received a motion from
the Secretary opposing Rogers' request to vacate the default
order. Sec'y Mot. at 1. She asserts that Rogers' request fails
to establish that it satisfies one or more of the criteria
required for relief under Rule 60(b). Id.
**FOOTNOTES**
[1]: Safety manager Jerry Teeler, who submitted the letter
seeking relief, wrote that "[i]t is unknown why I did not receive
the associated paperwork for this citation until January 3,
2002." R. Mot. at 1. We note, however, that on the form the
company returned to MSHA requesting a hearing on the civil
penalty, the name "Ed Elliott" was written in the blank under
"Company Official to Contact." The certificate of service on the
Secretary's Petition for Assessment of Penalty states that the
petition was sent to Elliott by certified mail. Similarly, the
judge's Order to Show Cause states that it was sent by certified
mail to Elliott and the return receipt from that order indicates
that it was delivered on October 2, 2001, with an agent of the
addressee signing for it.
Because of the confusion in the record, we are unable to
evaluate Rogers' request. In the interest of justice, we hereby
reopen this proceeding and remand it to the judge, who shall
determine whether relief from default is warranted. If the judge
determines that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.
____________________________________
Theodore F. Verheggen, Chairman
____________________________________
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Jerry Teeler, Safety Manager
Rogers Group, Inc.
P.O. Box 6437
Oak Ridge, TN 37831
Susan M. Williams, Esq.
Office of the Solicitor
U.S. Department of Labor
525 South Griffin St., Suite 501
Dallas, TX 75202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006