FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 26, 2007

BEFORE: Duffy, Chairman; Jordan 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) (“Mine Act”). On October 23, 2007, the Commission received from James Hamilton Construction (“Hamilton”) an amended motion by counsel seeking to reopen penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On July 12, 2007, the Commission had denied without prejudice Hamilton’s first request to reopen penalty assessments that had become final orders. James Hamilton Construction, 29 FMSHRC 569. The Commission instructed that if Hamilton chose to refile the motion to reopen, it should set forth an explanation to justify its failure to timely contest the proposed penalty assessments and to disclose with specificity what citations and associated penalties are included in the request for relief. 29 FMSHRC at 570-71.

            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).

            During 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued numerous citations to Hamilton. In Hamilton’s amended motion to reopen and attached affidavit, Hamilton states that it failed to timely contest the citations and proposed penalties at issue because its safety director was engaged in air quality compliance matters that required his immediate attention and, when he turned to the penalty proposals, he discovered that the time to respond had passed. In response, the Secretary states that she does not oppose reopening the proposed penalty proceedings. She also states that penalties in CENT 2007-232-M have been paid.

            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) (“JWR”). 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) (“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).

            Having reviewed Hamilton’s amended motion to reopen, in the interest of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Hamilton’s failure to timely contest the penalty proposals and whether relief from the final orders 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

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

Distribution:

Jeffrey A. Dahl, Esq.

Keleher & McLeod, P.A.

P.O. Box 506

Albuquerque, NM 87103-0506

W. Christian Schumann, Esq.

Office of the Solicitor

U. S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D. C. 20001