SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
: Docket No. PENN 2003-198
v. : A.C. No. 36-00970-04296 A
:
TIM GLASSCOCK, employed by :
MAPLE CREEK MINING, INC. :
BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, 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 September 24, 2003, the Commission received from Tim Glasscock a motion made by counsel to reopen a penalty assessment for a violation of section 110(c) of the Mine Act, 30 U.S.C. § 820(c) 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 individual charged with a violation under section 110(c) has 30 days following receipt of the Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); see also 29 C.F.R. 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
We have held, however, 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).
In his motion, Glasscock requests relief from the final order. He states that he never received a copy of the penalty assessment. Mot. To Reopen Proceedings at 1. In an affidavit attached to his motion, Glasscock states that the first notification he received regarding this penalty was in an August 25, 2003, letter sent by the Civil Penalty Compliance Office. Aff. at 2. According to Glasscock, that letter stated that payment of the assessed penalty was delinquent and that interest had begun to accrue on the penalty. Id. Glassock claims that he received this letter on September 4, 2003, at an address in Finleyville, Pennsylvania while cleaning junk mail out of the mailbox there. Id. He also states that the house at that address has never been his permanent residence or mailing address, and that his mailing address since January 1988 has been a post office box in West Virginia. Id. at 1-2. Finally, Glasscock states that from January 1, 2003, through August 7, 2003, he resided at either his home in West Virginia or at a motel in Illinois. Id. at 2. The Secretary states that she does not oppose Glasscock's request for relief.
Having reviewed Glasscock's motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Glasscock's failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined 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.
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Michael F. Duffy, Chairman
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Robert H. Beatty, Jr., Commissioner
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Mary Lu Jordan, Commissioner
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Stanley C. Suboleski, Commissioner
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Michael G. Young, Commissioner
Distribution:
Marco M. Rajkovich, Jr., Esq.
Noelle M. Holladay, Esq.
Wyatt, Tarrant & Combs, LLP
250 West Main St., Suite 1600
Lexington, KY 40507
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
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