SECRETARY OF LABOR, v. RIVERTON INVESTMENT CORP. |
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Docket No. WEVA 2006-27-M |
BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 November 9, 2005, the Commission received from Essroc Cement Corp. ("Essroc")1 a motion made 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). Counsel filed an amended motion on November 14, 2005.
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 or about September 14, 2005, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued the proposed penalty assessment to Essroc. Am. Mot. at 1-2. In its motion, Essroc states that during the period when the penalty contest was due from Essroc, the employee responsible for handling such matters, David Wiley, was absent and that the employee who assumed responsibility for the proposed assessment was unfamiliar with contest procedures. Id. at 2. By the time Wiley discovered the error, the contest deadline had passed. Id., Aff. of Randy Emery at 3. Essroc further states that it had intended to contest eight of the proposed penalties. Am. Mot. at 3, 5-6. The Secretary states that she does not oppose Essroc's request for relief.
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 Essroc's motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Essroc'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, these cases shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.
Footnote:
1 Essroc filed its motion under the name Riverton Investment Corp.
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Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
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Stanley C. Suboleski, Commissioner
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Michael G. Young, Commissioner
Distribution:
Marci M. Fulton, Esq.
Patton Boggs, LLP
1600 Lincoln St., Suite 1900
Denver, CO 90264
Willa B. Perlmutter, Esq.
Patton Boggs, LLP
2550 M Street NW
Washington, DC 20037-1350
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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