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[DOCID: f:se99153c.wais]
LIMEROCK INDUSTRIES, INC.
July 28, 1999
SE 99-153-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 28, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 99-153-M
: A.C. No. 08-00008-05572
LIMEROCK INDUSTRIES, 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 April 16, 1999, the Commission received a motion
from Limerock Industries, Inc. ("Limerock") 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), and to consolidate the citation with other
pending cases. Limerock had failed to timely submit a
request for hearing to contest the proposed penalty
assessments and pursuant to section 105(a), this proposed
penalty assessment of $340 became a final order of the
Commission thirty days after its receipt by Limerock. On
June 10, 1999, the Secretary of Labor filed a response to
Limerock's motion, stating that she does not oppose the
motion to reopen this case.
In its motion, Limerock contends that its failure to
timely file a hearing request to contest the proposed
penalty was due to its mistaken belief that the citation
at issue would automatically be consolidated with pending
cases involving citations from the same inspection giving
rise to the subject citation. Mot. at 2. Limerock explains
that the proposed penalty was related to two sets of
citations issued to it pursuant to section 104(d)(1) of the
Act, 30 U.S.C. � 814(d)(1). Id. at 1-2. Limerock states
that it timely filed notices of contests of the proposed
penalty assessments related to these two sets of citations
in October and November 1998. Id. at 4-5. It contends that
in January 1999 it received another citation resulting from
the same inspection, but that pursuant to discussions with
government counsel, it believed that it would automatically
be consolidated with the other outstanding citations. Id.
at 5. Consequently, it did not file a notice of contest of
the subject proposed penalty assessment. Limerock submitted
an affidavit from its safety manager, stating that he did
not file a notice contesting the subject proposed penalty
because of his good faith belief that the letters he had
sent contesting the other proposed penalties covered this
one as well. Aff. of Gene Pollock.
The Commission has found that, in appropriate
circumstances and pursuant to Fed. R. Civ. P. 60(b), it
possesses jurisdiction to reopen uncontested assessments
that have become final byoperation of section 105(a). Jim
Walter Resources, Inc., 15 FMSHRC 782, 786-90 (May 1993).
The Commission has 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. Coal Preparation
Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In
accordance with Rule 60(b)(1), the Commission has
previously 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);
General Chem. Corp., 18 FMSHRC 704, 705 (May 1996).
Here, the record indicates that Limerock intended to
contest the penalty associated with Citation No. 04359421
and that, but for its reliance on MSHA's statements that
all citations would be consolidated, it would have timely
submitted the hearing request and contested the proposed
penalty assessment. Under these circumstances, Limerock's
failure to timely file a hearing request reasonably may be
found to qualify as "inadvertence" or "mistake" within the
meaning of Rule 60(b)(1). See National Lime & Stone, Inc.,
20 FMSHRC 923 (Sept. 1998) (reopening matter when
operator's late filing of hearing request was caused by a
mutual misunderstanding between counsel for the operator
and counsel for MSHA as to need to challenge penalty
assessment prior to judge's approval of parties'
settlement); Eagle Energy, Inc., 21 FMSHRC 13, 15 (Jan.
1999) (granting unopposed request for relief from order
that became final due to a misunderstanding between the
operator and an MSHA representative).
Accordingly, in the interest of justice, we grant
Limerock's unopposed request for relief and reopen the
penalty assessment that became a final order with
respect to Citation No. 04359421. We remand the matter
for assignment to a judge, who shall rule on Limerock's
request to consolidate. 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 Limerock's position and would remand
the matter for assignment to a judge to determine whether
Limerock has met the criteria for relief under Rule 60(b).
See Randy Coal Co., 12 FMSHRC 1760, 1761 (Sept. 1990)
(remanding final order where operator's submission
reflected possible misunderstanding regarding procedures
in civil penalty proceeding).
Robert H. Beatty, Jr.,
Commissioner
Distribution
Michael Grogan, Esq. Coffman, Coleman, Andrews & Grogan
P.O. Box 40089
Jacksonville, FL 32203
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 Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006