FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001-2021
July 20, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.
AGGREGATES CONSTRUCTION, INC.,
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Docket No. CENT 2006-195-M
A.C. No. 32-00730-81412
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BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (AMine Act@). On July 11, 2006, the Commission
received from Aggregates Construction, Inc. (AAggregates Construction@) a motion made by counsel 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).
In its motion, Aggregates Construction states that in March 2006, the
Department of Labor=s Mine
Safety and Health Administration (AMSHA@) sent to the company the proposed
penalty assessment at issue. Mot. at 1. Aggregates Construction further
states that when it contested a number of related penalty assessments,
the contest of the proposed assessment at issue Awas inadvertently left out@ despite the company=s intention to contest it.
Id. at 1-2. The company discovered its mistake when it received a
Apast due@ payment notice from MSHA.
Id. at 2. The Secretary of Labor states that she does not
oppose Aggregates Construction=s request for relief.
We have held 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) (AJWR@). 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 inadvertence or mistake. See 29 C.F.R. ' 2700.1(b) (Athe 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).
Having reviewed Aggregates Construction=s request, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for
a determination of whether good cause exists for Aggregates
Construction=s failure to
timely contest the penalty proposal and whether relief from the final
order should be granted. If it is determined 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.
____________________________________
Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Stanley C. Suboleski, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021