FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 17, 2006

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 December 22, 2005, the Commission received from Marfork Coal Company, Inc. ("Marfork") a motion¹ 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).

             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).

             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.

             On July 14, 2005, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued to Marfork a proposed penalty assessment that included a proposed penalty for a citation issued to the company by MSHA on June 6, 2005, Citation No. 7242070. Mot. at 1. Marfork states in its motion that although the company's safety director indicated on the assessment form the company's intention to contest the penalty proposed for Citation No.7242070 and gave the form to the company's administrative staff for mailing, "through mistake and inadvertence, Marfork failed to mail in its contest." Id. and Statement of J. Bowles, Safety Director. In a response to Marfork's motion, the Secretary of Labor states that she requires additional information before she can express her position on the operator's motion. Sec'y Resp. at 1-2.

             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).

                                                                                     ____________________________________

                                                                                     Michael F. Duffy, Chairman

                                                                                     ____________________________________

                                                                                     Mary Lu Jordan, Commissioner

                                                                                     ____________________________________

                                                                                     Stanley C. Suboleski, Commissioner

                                                                                     ____________________________________

                                                                                     Michael G. Young, Commissioner

Distribution

M. Shane Harvey, Esq.
Massey Coal Services, Inc.
315 70th Street
Charleston, WV 25304

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor West

Arlington, VA 22209-2247

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