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[DOCID: f:cnt2000447.wais]
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LEO JOURNAGAN CONSTRUCTION COMPANY, INC.
October 30, 2000
CENT 2000-447-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
October 30, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2000-447-M
: A.C. No. 23-02128-05506
LEO JOURNAGAN CONSTRUCTION :
COMPANY, INC. :
BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, 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. (1994) ("Mine Act").
On August 28, 2000, the Commission received from Leo Journagan
Construction Company ("Journagan") a request 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).
The Secretary of Labor does not oppose the motion for relief
filed by Journagan.
Under section 105(a) of the Mine Act, an operator has 30
days following receipt of the Secretary of Labor's proposed
penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. 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,[1] Journagan contends that its failure to
timely file a hearing request to contest the proposed penalty was
due to its misplacement of the proposed assessment notification.
Mot. at 2, 4. Journagan asserts that it received a substantial
amount of correspondence, pleadings, and notices from MSHA around
the time it received the subject proposed penalty assessment.
Id. at 1, 4. It submits that it timely contested other proposed
assessments it received then. The company mistakenly believed
that it had also contested the penalty assessment at issue, and
the form was filed with other documents pertaining to matters
where the penalty had already been contested. Journagan explains
that the green card had apparently been separated from the
notice, and if it had been attached, it would have prompted the
company to contest the citation. Id. at 2, 4. Journagan asserts
that it promptly mailed the hearing request when it subsequently
discovered that the request had not been filed, but that the
thirty-day deadline for submission had already passed. Id. at 2.
It contends that granting its request to reopen would not delay
proceedings and that its actions amount to inadvertence or
neglect under Fed. R. Civ. P. 60(b). Id. at 3, 5. Journagan
requests that the Commission grant its request for relief and
reopen the matter so that it may proceed to a hearing on the
merits. Id. at 5.
We have held that, in appropriate circumstances and pursuant
to Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen
uncontested assessments that have become final by operation of
section 105(a). See, e.g., Jim Walters Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994). We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing
of adequate or good cause for the failure to timely respond, the
case may be reopened and appropriate proceedings on the merits
permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)(1), we have
previously afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See Peabody
Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining
Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining
Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); General Chem. Corp.,
18 FMSHRC 704, 705 (May 1996).
Here, the record indicates that Journagan intended to
contest the proposed penalty assessment and that, but for its
mistaken belief that it had already filed the proper papers, it
would have timely submitted the hearing request and contested the
proposed penalty assessment. Journagan has supported its
allegations with a sufficiently reliable affidavit. In these
circumstances, Journagan's failure to timely file a hearing
request properly may be found to qualify as "inadvertence" or
"mistake" within the meaning of Rule 60(b)(1). See Kenamerican
Resources, Inc., 20 FMSHRC 199, 200 (Mar. 1998) (reopening final
order where operator failed to timely file hearing request due to
internal processing error by its accounting department); Peabody
Coal Co., 19 FMSHRC at 1614-15 (granting operator's motion to
reopen when operator failed to submit request for hearing to
contest proposed penalty due to lack of coordination between
counsel and personnel at mine); Chantilly Crushed Stone, Inc., 22
FMSHRC 17, 19 (Jan. 2000) (reopening final order where operator
attached sufficiently reliable documents to support its
allegations).
Accordingly, in the interest of justice, we grant
Journagan's unopposed request for relief, reopen this penalty
assessment that became a final order, and remand to the judge for
further proceedings on the merits. This case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R. Part 2700.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution:
Bradley S. Hiles, Esq., Blackwell, Sanders, Peper, Martin, LLP,
720 Street, Suite 2400, St. Louis, MO 63101
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Depart-
ment 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
**FOOTNOTES**
[1]: Attached to Journagan's motion is an affidavit of John
A. View III, vice president of Journagan. Ex. A.