FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, D.C. 20001

May 16, 2008

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 March 4, 2008, the Commission received from James Hamilton Construction (“Hamilton”) a motion by counsel 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).

            On July 18, 2007, Hamilton received Citation No. 6246489 issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). Following receipt of the citation, Hamilton states that it misplaced the citation in a file in another docket and forwarded it to counsel. Hamilton further states that, upon auditing its files, its counsel determined that it failed to contest the proposed assessment because it misplaced the citation.

            The Secretary states that she does not oppose the reopening of the assessment. However, she further notes that Hamilton has filed another request to reopen, Docket No. WEST 2008-547-M, that also involves misplacement of documents. The Secretary concludes that Hamilton should take steps to ensure that it timely contests penalty assessments in the future. The Secretary also notes that Hamilton paid the penalty at issue on February 16, 2008.

            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 motion to reopen and the Secretary’s response thereto, we conclude that Hamilton has failed to provide any specific explanation to justify its failure to timely contest the proposed penalty assessment. Moreover, Hamilton has not submitted a reason why it waited four months after the delinquency letter was issued before it filed its motion seeking relief. Finally, Hamilton has failed to explain why it paid the proposed penalty in full, if it intended to contest it or the underlying citation. Accordingly, we deny without prejudice Hamilton’s request. See James Hamilton Construction, 29 FMSHRC 569, 570 (July 2007).

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

Distribution:

Jeffrey A. Dahl, Esq.

Keleher & McLeod, PA

P.O. Box AA

Albuquerque, NM 87103

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

Arlington, VA 22209-2296

Myra James, Chief

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

Arlington, VA 22209-2296

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