FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
August 1 , 2008
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. PIONEER SAND COMPANY |
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Docket No. WEST 2008-823-M A.C. No.02-02964-135305 Docket No. WEST 2008-824-M A.C. No. 02-02130-135308 Docket No. WEST 2008-825-M A.C. No. 02-03181-135310 |
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 April 11, 2008, the Commission received from Pioneer
Sand Company (“Pioneer”) letters seeking to reopen three penalty assessments that had become
final orders 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 January 8, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued three proposed penalty assessments to Pioneer. Pioneer states that it indicated on the proposed penalty assessment forms that it wanted to contest all the penalties and “promptly” mailed the forms to MSHA. However, it allegedly learned that MSHA had not received the penalty contest forms when MSHA sent delinquency notices on April 3, 2008. Although the Secretary notes that she has no record of receiving the penalty contest forms, she does not oppose the reopening of the assessments.
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) 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).
Having reviewed Pioneer’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 Pioneer’s failure to timely contest the penalty proposals and whether relief from the final orders should be granted. The Chief Administrative Law Judge should obtain from Pioneer supporting evidence regarding when Pioneer mailed the contest forms. 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
____________________________________
Robert F. Cohen, Jr., Commissioner
Distribution:
Tammy Mixdorf
Executive Administrator
Pioneer Sand Company
745 N. Gilbert Road, #124
Gilbert, AZ 85234
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
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