FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001


April 10, 2008

 

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

v.

LE SUEUR-RICHMOND SLATE CORP.
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Docket No. VA 2008-89-M
A.C. No. 44-00061-129587


BEFORE: Duffy, Chairman; Jordan 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. (2000) (“Mine Act”). On January 29, 2008, the Commission received from Le Sueur-Richmond Slate Corp. (“Le Sueur”) a letter by counsel 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 who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. 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).

 

            On October 18, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Penalty Assessment No. 000129587 to Le Sueur. Le Sueur states that, after the proposed assessment was delivered, the employee who signed for the delivery became ill, her work load decreased, and the proposed assessment was never presented to the operator’s officers. The Secretary states that she does not oppose Le Sueur’s request to reopen.


            We have held 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) 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).


            Having reviewed Le Sueur’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Le Sueur’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.


 


                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman



 


                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner





                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner


 



Distribution:


David P. Mitchel, Esq.

Michael J. Brickhill, P.C.

1890 Church St.

P.O. Box 2218

Appomattox, VA 24522


W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296


Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939


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