FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 7, 2008

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 April 14, 2008, the Commission received from Pitlick & Wick, Inc. (“Pitlick”) motions from counsel seeking to reopen four 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).

            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 February 13, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued the four proposed penalty assessments at issue to Pitlick. The affidavit of Pitlick’s Safety Director states that Pitlick failed to contest the penalty assessments within the required 30 days “due to mistake and inadvertent administrative error due to clerical error which failed to bring the assessment to [his] attention in a timely fashion.” The Secretary does not oppose the reopening of the assessments.

            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 Pitlick’s request and the Secretary’s response, we determine that Pitlick has failed to provide a sufficiently detailed explanation for its failure to timely contest the proposed penalty assessments. Pitlick’s conclusory statement that a clerical error resulted in its failing to timely contest the assessments does not provide the Commission with an adequate basis to justify reopening. Accordingly, we deny without prejudice Pitlick’s request. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392 (May 2008); James Hamilton Construction, 29 FMSHRC 569, 570 (July 2007).

                                                                                                       ____________________________________

                                                                                                       Michael F. Duffy, Chairman

                                                                                                       ____________________________________

                                                                                                       Mary Lu Jordan, Commissioner

                                                                                                       ____________________________________

                                                                                                       Michael G. Young, Commissioner

                                                                                                       ____________________________________

                                                                                                       Robert F. Cohen, Jr., Commissioner

Distribution:

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25^th Fl.

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

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