FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,
Suite 9500
Washington, DC 20001

March 19, 2004

 

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :       Docket No. PENN 2004-71
          v.                    :       A.C. No. 36-00970-11102 A
                                :
DUANE ROSS, 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 January 20, 2004, the Commission received from Duane Ross, employed by Maple Creek Mining, Inc., 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, Ross states that the subject proposed penalty assessment (No. 36-00970- 11102 A) was issued to him on October 15, 2003. Mot. at 1. Ross further submits that on October 31, 2003, he served a copy of a Notice of Contest challenging the proposed penalty assessment to the Commission, a regional Office of the Solicitor with the Department of Labor, and to the Department of Labor's Mine Safety and Health Administration's Civil Penalty Compliance Office ("Compliance Office"). Id.; Ex. 1, at 3. Attached to the Notice of Contest was a copy of his request for hearing ("green card") and a copy of the subject citation. Ross states that he received from the Commission's Docket Office a copy of the Notice of Contest, which was stamped with the date of November 3, 2003. Ross explains that when his counsel contacted the Commission's Docket Office to inquire of the status of the case, his counsel was informed that the case had not been assigned to a judge because the Compliance Office had not processed the Notice of Contest. Mot. at 1-2. Ross states that he was subsequently informed by the Compliance Office that it had no record of the Notice of Contest. Id. at 2. The Secretary states that she does not oppose Ross' request for relief.

Having reviewed Ross' 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 Ross' 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 2700.1



____________________________________
Michael F. Duffy, Chairman

____________________________________
Robert H. Beatty, Jr., Commissioner

____________________________________
Mary Lu Jordan, Commissioner

____________________________________
Stanley C. Suboleski, Commissioner

____________________________________
Michael G. Young, Commissioner



Distribution:

Marco M. Rajkovich, Jr., Esq.
LeToi D. Mayo, Esq.
Wyatt, Tarrant & Combs, LLP
250 West Main Street, 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


FOOTNOTES:

1 On this same date, we are separately issuing an order relating to Ross’ request for relief from a final order in Docket No. PENN 2004-17 (A.C. No. 36-00970-04180 A). If the judge grants relief in the subject proceeding and Docket No. PENN 2004-17, he shall take such action, if any, to consolidate the proceedings as he deems appropriate.