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[DOCID: f:jwrord.wais]
JIM WALTER RESOURCES, INC.
June 2, 1997
SE 97-140
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 2, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 97-140
: A.C. No. 01-01322-04075
JIM WALTER RESOURCES, INC. :
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
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 May 12, 1997, the
Commission received from Jim Walter Resources, Inc. ("JWR") 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). On May 21, the Commission received the
Secretary's response, opposing the request.
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).
JWR asserts that it submitted its request for hearing
("Green Card") 5 days late because the file for this citation was
misplaced and not put on the calendar of its attorney. According
to JWR, the Green Card was mailed immediately after the misplaced
file was located. JWR also contends that the delay in submitting
its Green Card was due to the unusually heavy case load of its
attorney, which it attributes to a recent influx of citations and
orders issued by MSHA and a corporate downsizing. JWR asserts
that it is entitled to relief under Fed. R. Civ. P. 60(b)(1) and
(6).
The Secretary argues that the request should be denied
because JWR has failed to satisfy any of the requirements for
obtaining relief under Fed. R. Civ. P. 60(b). S. Opp'n at 3.
The Secretary asserts that the justifications offered by JWR for
the late filing of its request for hearing are legally
insufficient for obtaining relief under Rule 60(b). Id. at 3-4.
Attached as exhibits to the Secretary's opposition are a signed
certified mail return receipt confirming that the proposed
penalty assessment was received by JWR on March 17, and a letter
from the Chief of MSHA's Civil Penalty Compliance Office, dated
April 25, 1997, indicating that JWR's Green Card was mailed on
April 21, and received by MSHA on April 24, 1997 - 8 days after
the April 16 deadline.
The Commission has held that, in appropriate circumstances
and pursuant to Fed. R. Civ. P. 60(b), it possesses jurisdiction
to reopen uncontested assessments that have become final under
section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-
89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(September 1994). Here, as in Rocky Hollow, the operator alleges
that the assessment has become final as the result of misplaced
documents. See Rocky Hollow, 16 FMSHRC at 1931. See also
Eastern Associated Coal Corp., 19 FMSHRC 494, 494-95 (March 1997)
(substitute mailroom employee failed to refer proposed assessment
to legal department); Del Rio, Inc., 19 FMSHRC 467, 467-68 (March
1997) (operator mailed Green Card one week late because it was
inadvertently misfiled in its accounts payable file).
The Commission has 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 Services, Inc., 17 FMSHRC 1529, 1530
(September 1995). In accordance with Rule 60(b)(1), the
Commission has previously afforded a party relief from a final
order of the Commission on the basis of inadvertence or mistake.
See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996);
Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September
1996).
On the basis of the present record, we are unable to
evaluate the merits of JWR's position. In the interest of
justice, we remand the matter for assignment to a judge to
determine whether JWR has met the criteria for relief under Rule
60(b). 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.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner