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[DOCID: f:lake98194.wais]
NATIONAL LIME & STONE, INC.
September 2, 1998
LAKE 98-194-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 2, 1998
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 98-194-M
:
NATIONAL LIME & STONE, INC. :
BEFORE: Jordan, Chairman; Marks, 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 13, 1998, the Commission received from National Lime &
Stone, Inc., ("National") 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). It has been
administratively determined that the Secretary of Labor does not
oppose the motion for relief.
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).
National submits that, although it timely filed a notice to
contest Citation No. 7821909, it failed to timely file a hearing
request to contest the associated penalty proposed by the
Department of Labor's Mine Safety and Health Administration
("MSHA"). It explains that its late filing of the hearing
request was due to a misunderstanding between counsels for
National and the Secretary concerning the need to separately
contest the citation and the proposed penalty. Mot. at 3.
National claims that it timely filed a notice of contest of the
citation on April 7, 1998, and one week later requested expedited
consideration of the contest case, which had been assigned to
Administrative Law Judge August Cetti. Id. at 2. The operator
contends that soon thereafter, the parties reached a settlement
regarding the penalty amount, which was then reduced to a written
settlement agreement. Id. Subsequently, the parties requested
and received a stay of the proceedings pending assessment of
civil penalties. Id. National claims that on June 9, MSHA filed
a petition proposing a penalty for the citation. Id. The
operator asserts that the settlement addressed both the proposed
penalty and the citation, and that the settlement "was filed with
the Court for approval on July 2, 1998." Id. National contends
that it believed that, because the parties had agreed to a
penalty amount and agreed to move for entry of the settlement, no
"green card" needed to be sent, and no separate docket
challenging the proposed penalty assessment had to be
established. Id.
National states that on or about July 13, 1998, the judge
notified the Solicitor's office that he could not approve the
parties' settlement agreement because a separate action
challenging the proposed assessment had not been instituted. Id.
Subsequently, National filed its "green card" contesting the
assessment, but MSHA rejected the petition as untimely because it
was sent over 30 days after the proposed assessment had issued.
Id. National asserts that its failure to file the "green card"
in a timely fashion was due to mistake or inadvertence, and that
it is entitled to relief under Fed. R. Civ. P. 60(b)(1). Id. at
5.
We have held that, in appropriate circumstances and pursuant
to Rule 60(b), we possess jurisdiction to reopen uncontested
assessments that have become final under section 105(a). Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter
Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). We also have
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 previously have 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); General Chem. Corp., 18 FMSHRC 704, 705 (May
1996).
National's motion indicates that it intended to contest
Citation No. 7821909 and settle the related penalty with the
Secretary, and that, but for an apparent mutual misunderstanding
between counsel regarding the necessity of challenging the
penalty assessment prior to approval of the settlement, National
likely would have contested the proposed penalty. In the
circumstances presented here, National's late filing of a hearing
request amounts to inadvertence or mistake within the meaning of
Rule 60(b)(1). See Stillwater, 19 FMSHRC at 1022-23 (granting
operator's motion to reopen when operator failed to submit
request for hearing to contest proposed penalty due to lack of
coordination between recipient of assessment at mining facility
and its attorneys); Rivco Dredging Corp., 10 FMSHRC 624, 624-25
(May 1988) (granting operator's petition for review when operator
filed notice of contest as to alleged violations, but was unaware
that contest of civil penalty proposals was required).
Accordingly, in the interest of justice, we grant National's
unopposed request for relief and reopen this penalty assessment
that became a final order with respect to Citation No. 7821909.
The 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
Robert H. Beatty, Jr., Commissioner
Distribution
David Farber, Esq., Patton Boggs, LLP, 2550 M Street, N.W.,
Washington, D.C. 20037
Ruben Chapa, Esq., Office of the Solicitor,U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
Chief Administrative Law Judge Paul Merlin,Federal Mine
Safety & Health Review Commission,1730 K Street, N.W.,
Suite 600, Washington, D.C. 20006