.
SPROULE CONSTRUCTION CO., INC.
January 19, 2000
LAKE 2000-19-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
January 19, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 2000-19-M
: A.C. No. 11-03024-05503
SPROULE CONSTRUCTION CO., INC. :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners
This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").
On September 13, 1999, the Commission received from Sproule
Construction Co., Inc. ("Sproule") 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 Sproule.[1]
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 request, Sproule requests that the Commission reopen
an uncontested citation (Citation No. 7817699) that became a
final order of the Commission by operation of section 105(a),
and to consolidate it with a separate civil penalty proceeding
involving the same operator, LAKE 99-24-M. In that proceeding,
Chief Administrative Law Judge Merlin issued an Order of Default
to Sproule for its failure to answer the petition for assessment
of penalties for various alleged violations of mandatory health
or safety standards on March 15, 1999. On March 25, 1999,
Sproule filed a Motion to Vacate any and all Defaults and for
Leave to File an Answer to Petition for Assessment. On April 26,
1999, the Commission issued an order vacating the default, and
remanding to the judge to determine whether relief from default
was warranted. 21 FMSHRC 426, 428 (April 1999) (Chairman Jordan,
dissenting). On June 10, 1999, Judge Merlin issued an order on
remand, vacating the default order and assigning the matter to
Administrative Law Judge Jacqueline Bulluck. 21 FMSHRC 691, 692
(June 1999) (ALJ). Judge Merlin reasoned that the operator had
been pro se up until the time that the default order was issued
and was unfamiliar with Commission procedure, and that the
operator had contacted the Department of Labor's Mine Safety and
Health Administration ("MSHA") when it first received the
petition and erroneously believed that such action resolved the
matter. Id.
Sproule states in its request that it subsequently filed its
Answer to the Petition for Assessment, including in the Answer
its challenge to Citation No. 7817699. Mot. at 2. Sproule
submits that Judge Bulluck informed it that Citation No. 7817699
was not included in the Petition for Assessment of Penalty for
Docket No. LAKE 99-24-M, and that Sproule could not include its
challenge to that citation in its Answer. Id. Accordingly,
Sproule requests that the Commission consolidate Citation No.
7817699 with LAKE 99-24-M. Sproule attached to its Motion to
Join various documents filed and issued in LAKE 99-24-M.
The separate proceeding, LAKE 99-24-M, has been settled.
Although Sproule's motion to consolidate Citation No. 7817699
with LAKE 99-24-M is now moot, Sproule continues to challenge
the citation. Accordingly, Sproule's motion to reopen Citation
No. 7817699 requires resolution.
The proposed assessment for Citation No. 7817699 was
received by Sproule on November 20, 1998. Reg. Solicitor's Exs.
C, D. Sproule did not file a green card request for a hearing
with respect to the citation, and the proposed assessment became
a final order of the Commission on December 20, 1998.
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., Inc., 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
Services, 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, mistake, or excusable neglect. See National Lime &
Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co.,
19 FMSHRC 1613, 1614-15 (Oct. 1997).
Sproule offers no explanation in its motion for the reasons
that it failed to file a green card request for a hearing with
respect to Citation No. 7817699. However, it appears from the
record and attachments to Sproule's motion that Sproule was pro
se at the time that it received the penalty proposal and that it
was unfamiliar with Commission procedure. See Reg. Solicitor's
Exs. C, D (establishing that Sproule received Citation No.
7817699 on 11-20-98); Sproule's Ex. E at 1 (judge's remand order,
in which the judge found that, in November 1998, Sproule was pro
se and was not familiar with Commission procedure).
In the interest of justice and in order to serve judicial
economy, we grant Sproule's unopposed request for relief and
reopen the penalty assessment that became a final order with
respect to Citation No. 7817699. See Turner v. New World Mining,
Inc., 14 FMSHRC 76, 77 (Jan. 1992) (reopening final order and
finding sufficient allegation that counsel misunderstood
Commission procedure); Peabody, 19 FMSHRC at 1614-15 (reopening
final order when party's failure to submit hearing request was
due to unfamiliarity with Commission procedure). 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
Commissioner Beatty, dissenting:
On the basis of the present record, I am unable to evaluate
the merits of Sproule's position and would remand the matter for
assignment to a judge to determine whether Sproule has met the
criteria for relief under Rule 60(b). See Dean Heywood Addison,
19 FMSHRC 681, 682-83 (Apr. 1997) (remanding to judge to
determine whether asserted lack of familiarity with Commission
procedures met criteria for relief under Rule 60(b)); REB
Enterprises, Inc., 18 FMSHRC 311, 312-13 (Mar. 1996) (remanding
where failure to file answer was claimed to be based upon lack of
familiarity with Commission rules and procedures). I also note
that Sproule has failed to provide any explanation for its
failure to timely file a green card or to offer any affidavits to
explain its position.
Robert H. Beatty, Jr., Commissioner
Distribution
Margaret Donnell, Esq.
Richard P. Reichstein, Ltd.
120 North Green St., Suite 601
Chicago, IL 60607
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] On October 21, 1999, the Commission received an
opposition to Sproule's request from the Department of Labor's
Regional Solicitor's Office in Chicago, Illinois. Attached to
the opposition were various documents including a copy of a
certified receipt for the proposed penalty associated with
Citation No. 7817699. Reg. Solicitor's Exs. C, D. On December
13, 1999, the Commission received a letter from the Appellate
Litigation Division of the Solicitor's Office clarifying that the
Secretary does not, in fact, oppose the motion to reopen.