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[DOCID: f:we200258c.wais]
KILAUEA CRUSHER, INC.
WEST 2002-58-M
April 30, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
April 30, 2002
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 2002-58-M
: A.C. No. 02-02479-05535
KILAUEA CRUSHER, INC. :
BEFORE: Verheggen, Chairman; Jordan and Beatty, 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 November 21, 2001, the Commission received from
Kilauea Crusher, Inc. ("Kilauea") 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). The Secretary of Labor does not oppose
Kilauea's request for relief.
Under section 105(a) of the Mine Act, an operator has 30
days following receipt of the Secretary'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 the request, Kilauea, which is represented by counsel,
asserts that its failure to timely submit a hearing request on
the proposed penalty assessment to the Department of Labor's
Mine Safety and Health Administration ("MSHA") was due to
internal mishandling. Mot. at 1-3. Kilauea explains that it
received four citations during an inspection conducted on
November 21, 2000, and subsequently received two proposed
penalty assessments for these citations, the first proposed
assessment for Citation No. 7947469, at issue in this
proceeding, on August 30, 2001, and the second proposed
assessment for Citation Nos. 7947470 through 7947472 on
September 8, 2001. Id. at 2. The operator contends that its
vice-president, Marcilline Nichols, date-stamped the second
assessment September 8, 2001, stapled both assessments
together, and on September 10, 2001, handed them to its counsel
to file a hearing request. Id. The operator contends that
because Nichols failed to date-stamp the first proposed
assessment for Citation No. 7947469, its counsel mistakenly
believed that it received both assessments on the same date and
filed hearing requests for both assessments on October 2, 2001.
Id. at 2-3. It claims that it was not aware that its hearing
request on the assessment for Citation No. 7947469 was late
until it received a letter from MSHA informing it that the
proposed assessment had become a final order. Id. The
operator requests that the Commission reopen the assessment
and permit it to have a hearing on the merits. Id. at 5.
The operator attached to its request a copy of the proposed
penalty assessment for Citation No. 7947469, copies of the
citations, and the affidavit of Marcilline Nichols.
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).
The record indicates that Kilauea intended to contest the
proposed penalty assessment, but that it failed to do so in a
timely manner due to internal mishandling. The affidavit
attached to Kilauea's request is sufficiently reliable and
supports its allegations. In the circumstances presented here,
we treat Kilauea's late filing of a hearing request as
resulting from inadvertence or mistake. See 46 Sand & Stone,
23 FMSHRC 1091, 1091-93 (Oct. 2001) (granting operator's
request to reopen where operator alleged its failure to timely
request a hearing was due to internal mishandling as a result
of change in personnel and operator's assertions were supported
by affidavit); Heartland Cement Co., 23 FMSHRC 1017, 1018-19
(Sept. 2001) (granting operator's request to reopen where
operator alleged its failure to timely request a hearing was
due to internal processing error as a result of its receipt of
numerous proposed penalty assessments simultaneously and
operator's allegations were supported by affidavit).
Accordingly, in the interest of justice, we grant
Kilauea's request for relief, reopen the penalty assessment
that became a final order with respect to Citation No. 7947469,
and remand to the judge for further proceedings on the merits.
The case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.
Theodore F. Verheggen, Chairman
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Charles P. Keller, Esq.
Snell & Wilmer, LLP
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004
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 David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006