<DOC>
[DOCID: f:ke200238c.wais]
LEECO, INC.
KENT 2002-38
April 30, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
April 30, 2002
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. KENT 2002-38
v. : A.C. No. 15-18022-03534
:
LEECO, INC. :
BEFORE: Verheggen, Chairman; Jordan 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 November 2, 2001, the Commission received from Leeco,
Inc. ("Leeco") 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 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. Id.
In its request, Leeco,[1] through counsel, asserts that
the proposed penalty assessment was marked as having been
received by the operator on August 21, 2001. Mot. at 1. It
contends that Andy Fields, Blue Diamond's safety manager,
mistakenly filed the green card past the 30-day deadline
because he miscalculated the return deadline as September 21,
2001, believing that to be thirty days after the date of
receipt, August 21, 2001. Id. at 1-2. Leeco attached to its
request a signed affidavit by Fields supporting its assertion
that it filed the green card past the 30-day deadline due to
an inadvertent miscalculation of the required return date.
Id., attachment. It also attached to its request a copy of
the proposed penalty assessment stamped as having been
received by the operator on August 21, 2001. Id. In addition,
it attached a copy of a delinquency letter from the
Department of Labor's Mine Safety and Health Administration
which states, as Leeco notes in its request, that the proposed
penalty assessment was received by the operator on August 20,
2001. Id.
We have held that, in appropriate circumstances, we possess
jurisdiction to reopen uncontested assessments that have become
final under section 105(a). Jim Walter Res., Inc., 15 FMSHRC
782, 786-89 (May 1993) ("JWR"); 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 Prep. Servs., Inc., 17 FMSHRC
1529, 1530 (Sept. 1995). In reopening final orders, the
Commission has found guidance in, and has applied "so far as
practicable," Fed. R. Civ. P. 60(b). 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. In accordance with Rule 60(b)(1), we previously
have afforded a party relief from a final order of the Commission
on the basis of inadvertence or mistake. See Gen. Chem. Corp.,
18 FMSHRC 704, 705 (May 1996); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co.,
19 FMSHRC 1021, 1022-23 (June 1997).
The record indicates that Leeco intended to contest the
proposed penalty assessment, but that it failed to do so in a
timely manner due to an internal oversight. The affidavit
attached to Leeco's request is sufficiently reliable and
supports its allegations.[2] In the circumstances presented
here, we treat Leeco's late filing of a hearing request as
resulting from inadvertence or mistake. See 46 Sand & Stone,
23 FMSHRC 1091, 1091-93 (Oct. 2001) (granting operator's
request to reopen where operator alleged its failure to timely
request a hearing was due to internal processing error and
operator's assertions were supported by affidavit); Heartland
Cement Co., 23 FMSHRC 1017, 1017-19 (Sept. 2001) (same).
Accordingly, in the interest of justice, we grant Leeco's
request for relief, reopen the penalty assessment that became
a final order with respect to Citation No. 7507813, and remand
to the judge for further proceedings on the merits. The case
shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.
Theodore F. Verheggen, Chairman
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Marco M. Rajkovich, Jr., Esq.
Melanie J. Kilpatrick, Esq.
Wyatt, Tarrant & Combs, LLP
1700 Lexington Financial Center
250 West Main Street
Lexington, KY 40507
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department 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]: Leeco states that it was operating the mine at
the time the citation (Citation No. 7507813) relating to the
penalty assessment was issued but that mine operations were
subsequently transferred to Blue Diamond Coal Company ("Blue
Diamond"), an affiliate of Leeco. Mot. at 1 n.1. On August
15, 2001, a proposed penalty assessment relating to the
citation was issued to Blue Diamond, "A/K/A LEECO INC"
by the Department of Labor's Mine Safety and Health
Administration ("MSHA"). Id., attachment.
[2]: We note the confusion in the record over whether
the operator received the proposed penalty assessment on August
20 or August 21, 2001, but determine that it does not
significantly detract from the operator's allegations.