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[DOCID: f:weva9990.wais]
UNIQUE MINING, INC.
June 21, 1999
WEVA 99-90
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 21, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 99-90
: A.C. No. 46-08702-03507
UNIQUE MINING, INC. :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY: Jordan, Chairman; Marks, Riley, and Verheggen, 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
14, 1999, the Commission received from Unique Mining, Inc.
("Unique") a request to reopen four penalty assessments, totaling
$200,000, that had become final orders 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 Unique.
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 motion, Unique contends that its failure to timely
file a hearing request to contest the proposed penalties ("green
card") was due to a misfiling by its accounting firm. Mot. at 2.
Unique explains that the proposed penalties were related to one
citation (Citation No. 7160503) and three orders (Order Nos.
7160505, 4203791, and 4203792) issued to it pursuant to section
104(d)(1) of the Act, 30 U.S.C. � 814(d)(1). Id. at 1. Unique
states that it timely filed notices of contest of the underlying
citation and orders, and that the contest proceedings were stayed
pending the initiation of the associated civil penalty
proceedings. Id. It submits that on May 3, 1999, the Department
of Labor's Mine Safety and Health Administration ("MSHA")
contacted Unique's counsel, and informed her that the proposed
penalties had not been paid or contested. Id. at 2. Unique
contacted its accounting firm, which is responsible for picking
up and sorting Unique's mail. Id. at 1-2. Unique states that
its accounting firm discovered that the proposed penalties had
not been entered into its computer system and that the missing
green card had mistakenly been attached to an unrelated green
card and, therefore, was not visible. Id. at 2. Attached to the
motion are affidavits by the office manager of Unique's
accounting firm and Unique's president, and a copy of the subject
green card. Exs. A, B, C.
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 Peabody
Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); RB Coal Co., 17
FMSHRC 1110, 1111 (July 1995).
Here, the record indicates that Unique intended to contest
the penalties associated with Citation No.7160503 and Order Nos.
7160505, 4203791, and 4203792 and that, but for the misfiling by
its accounting firm, it would have timely submitted the hearing
request and contested the proposed penalty assessments. In these
circumstances, Unique's failure to timely file a hearing request
reasonably may be found to qualify as "inadvertence" or "mistake"
within the meaning of Rule 60(b)(1). See Kenamerican Resources,
Inc., 20 FMSHRC 199, 200-01 (Mar. 1998) (reopening proceedings
when green card was not timely filed due to operator's internal
processing error).
Accordingly, in the interest of justice, we grant Unique's
unopposed request for relief and reopen the penalty assessments
that became final orders with respect to Citation No.7160503 and
Order Nos. 7160505, 4203791, and 4203792. 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
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Commissioner Beatty, dissenting:
On the basis of the present record, I am unable to evaluate
the merits of Unique's position and would remand the matter for
assignment to a judge to determine whether Unique has met the
criteria for relief under Rule 60(b). See Benton County Stone,
Inc., 21 FMSHRC 5, 7 (Jan. 1999) (remanding final order when
operator misfiled green card).
Robert H. Beatty, Jr., Commissioner
Distribution
Mark E. Heath, Esq.
Heenan, Althen & Roles
P.O. Box 2549
Charleston, WV 25329-2549
Sheila Cronan, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006