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[DOCID: f:west99263.wais]
GOOD CONSTRUCTION
June 21, 1999
WEST 99-263-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 21, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 99-263-M
: A.C. No. 45-03086-05511
GOOD CONSTRUCTION :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY: Jordan, Chairman; Riley, 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
May 4, 1999, the Commission received from Good Construction 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). It has been administratively determined
that the Secretary of Labor does not oppose the motion for relief
filed by Good Construction.
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 its request, Good Construction maintains that it failed
to timely file a request for a hearing ("green card") for the
proposed penalty associated with Citation No. 7962496 because it
never received the green card. Mot. at 2. The operator submits
that the subject citation was one of five citations that it
contested, and that the contest proceedings were stayed pending
initiation of associated civil penalty proceedings. Id. at 1.
Good Construction states that civil penalty proceedings were
initiated involving four of the citations. Id. It explains
that, in response to an order issued by Administrative Law Judge
Richard Manning requesting the status of the proposed penalty
assessment relating to the fifth citation, the Secretary
responded that she had not yet issued a proposed penalty. Id.;
Exs. 4, 5. The operator states that, in response to a subsequent
order by the judge, Good Construction requested a hearing on the
contest proceedings and on the civil penalty proceedings related
to the four citations. Mot. at 2; Exs. 6, 7. The operator
submits that, on December 7, 1998, a proposed assessment for the
fifth citation was mailed to it, but that Good Construction never
received it. Mot. at 2. It states that, after it was informed
on February 24, 1999 that it was delinquent in paying the
penalty, it subsequently corresponded and telephoned the
Department of Labor's Mine Safety and Health Administration
("MSHA") regarding the matter. Id. Among other documents, the
operator attached to its motion a memorandum from MSHA, stating
that the penalty petition had been delivered to Good Construction
on many occasions, but that it was never claimed by the operator.
Ex. 10.
We have held that, in appropriate circumstances and pursuant
to Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen
uncontested assessments that have become final by operation of
section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-
90 (May 1993). 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 Preparation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)(1), we have
previously afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See National
Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal
Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997).
On the basis of the present record, we are unable to
evaluate the merits of Good Construction's position. In the
interest of justice, we remand the matter for assignment to a
judge to determine whether Good Construction has met the criteria
for relief under Rule 60(b). See Gary Klinefelter, 19 FMSHRC
827, 828 (May 1997) (remanding for determination of whether
relief from final order warranted where unclear why individual
did not receive proposed penalty); Waste Coal Management, Inc.,
14 FMSHRC 423, 423-24 (Mar. 1992) (remanding where default order
sent by certified mail may not have been received by operator).
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, Chairman
James C. Riley, Commissioner
Robert H. Beatty, Jr., Commissioner
Commissioners Marks and Verheggen, dissenting:
Good Construction has alleged that it never received the
penalty proposal associated with Citation No. 7962496. Mot.
at 2. The Secretary of Labor has not disputed any of the facts
set forth in Good Constructions's motion, and, in fact, does
not oppose the motion. On the basis of the present record,
we would grant Good Construction's request for relief. See
Harvey Trucking, 21 FMSHRC , slip op. at 4, No. WEVA 99-87
(June 11, 1999) (Commissioners Marks and Verheggen, dissenting).
Marc Lincoln Marks, Commissioner
Theodore F. Verheggen, Commissioner
Distribution
James A. Nelson, Esq.
205 Cowlitz, P.O. Box 878
Toledo, WA 98591
Sheila Cronan, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006