<DOC>
[DOCID: f:se2001108.wais]
SHIRLEY LAND DEVELOPMENT INC.
August 22, 2001
SE 2001-108-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 22, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 2001-108-M
:
SHIRLEY LAND DEVELOPMENT INC. :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
Commissioners
ORDER
BY: Jordan and Beatty, 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
April 20, 2001, the Commission received from Shirley Land
Development Inc. ("Shirley Land") 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).
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 this case, Shirley Land did not timely submit its
request for a hearing to the Department of Labor's Mine Safety
and Health Administration ("MSHA"). See 29 C.F.R. � 2700.26.
In its motion submitted by Patricia R. Shirley, company
president, it states that it never received notice of the
proposed penalty assessment from MSHA. Mot. The operator was
issued Citation Nos. 6067035 and 6067036, dated June 15, 2000,
for violations of 30 C.F.R. � 56.14107(a). Id., attachs.
Shirley Land asserts that, having abated the alleged violations
and having received no notice of proposed penalties, it
concluded that no penalties had resulted from the citations.
Mot. It contends that it was unaware of any penalties until it
received a letter on April 14, 2001, from MSHA informing it
that the proposed penalties associated with the cited
violations had become final and that it was delinquent in
payment of the penalties. Id., attachs. Shirley Land
requests that the Commission reopen this matter. Mot.
We have held that, in appropriate circumstances, we
possess jurisdiction to reopen uncontested assessments that
have become final under section 105(a). Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal
Co., 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 Prep.
Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening
final orders, the Commission has found guidance in, and has
applied "so far as practicable," Fed. R. Civ. P. 60(b). 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. 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 Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996);
Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept.
1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23
(June 1997).
On the basis of the present record, we are unable to
evaluate the merits of Shirley Land's position. In the
interest of justice, we remand the matter for assignment to
a judge to determine whether relief from the final order is
appropriate. See Idaho Minerals, 22 FMSHRC 1301, 1301-03
(Nov. 2000) (remanding where operator alleged it did not
receive proposed penalty assessment); Bauman Landscape, Inc.,
22 FMSHRC 289, 289-90 (Mar. 2000) (same). If the judge
determines 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.
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Chairman Verheggen and Commissioner Riley, concurring in result:
We would grant the operator's request for relief here,
because the Secretary does not oppose the motion for relief,
the operator has offered a sufficient explanation for its
failure to timely respond, and no other circumstances exist
that would render such a grant problematic. However, in order
to avoid the effect of an evenly divided decision, we join in
remanding the case to allow the judge to consider whether the
operator has met the criteria for relief under Rule 60(b).
See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd
on other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing that
the effect of a split Commission decision is to leave standing
disposition from which appeal has been sought).
Theodore F. Verheggen, Chairman
James C. Riley, Commissioner
Distribution
Patricia R. Shirley, President
Shirley Land Development, Inc.
1301 35th Avenue West
Bradenton, FL 34205
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006