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[DOCID: f:ws2002299.wais]
CDG MATERIALS, INC.
WEST 2002-299-M
May 7, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 2002-299-M
: WEST 2002-300-M
CDG MATERIALS, INC. :
BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
ORDER
BY: Jordan 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
March 11, 2002, the Commission received from CDG Materials, Inc.
("CDG") a request to reopen two 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 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).
On or approximately October 24, 2001, the Department of
Labor's Mine Safety and Health Administration ("MSHA") sent to
CDG two proposed penalty assessments totaling $9,550 for 14
citations that it issued to CDG on March 2 and 5, 2001. In its
motion, CDG contends that it timely submitted a request for a
hearing on these proposed assessments to MSHA, but on March 6,
2002, was notified by MSHA's Civil Penalty Compliance Office
that its hearing request was denied because it was untimely.
Mot. It maintains that "due to recent current events the
efficiency of the U.S. Postal Service may have been compromised
during and around the time frame" for filing its request. Id.
CDG asserts that it "has valid points pertaining to this
case" and requests that the Commission reopen the proposed
assessments so that it may proceed to a hearing on the merits.
Id. CDG did not attach any documents to its request.
We have held that, in appropriate circumstances, we possess
jurisdiction to reopen uncontested assessments that have become
final under section 105(a). Jim Walter Res., Inc., 15 FMSHRC
782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994). 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 Prep. Servs., Inc., 17 FMSHRC
1529, 1530 (Sept. 1995). In reopening final orders, the
Commission has found guidance in, and has applied "so far as
practicable," Fed. R. Civ. P. 60(b). 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. In accordance with Rule 60(b)(1), we
previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See
Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).
On the basis of the present record, we are unable to
evaluate the merits of CDG's position. Other than CDG's
assertions, the record contains no information regarding
whether CDG submitted a request for a hearing, and if it did,
when it was sent by CDG and whether and when it was received
by MSHA. Nor is it clear which proposed penalties CDG intended
to contest. Accordingly, we remand the matter for assignment
to a judge to determine whether relief from the final order
is appropriate. See Kerr Enterprises, Inc., 24 FMSHRC 1, 2
(Jan. 2002) (remanding to judge where pro se operator offered
no explanation for failure to timely file request for hearing);
BR&D Enterprises, 22 FMSHRC 479, 480-81 (Apr. 2000) (remanding
to judge where operator alleged that it timely filed a hearing
request by certified mail, but never received return receipt);
H & D Coal Co., 23 FMSHRC 382, 383 (Apr. 2001) (remanding to
judge where operator allegedly mailed hearing request, but
MSHA did not receive it). 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, Commissioner
___________________________________
Robert H. Beatty, Jr., Commissioner
Chairman Verheggen, dissenting:
I would grant CDG's request for relief. First, I note that
the Secretary does not oppose the operator's motion. I also note
that the operator is proceeding pro se, and that the Commission
has always held the pleadings of pro se litigants to less
stringent standards than pleadings drafted by attorneys. Marin
v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992) (citing Haines
v. Kerner, 404 U.S. 519, 520 (1972)). In addition, the timing of
MSHA's delivery of the proposed assessments and the deadline for
CDG to file hearing requests fell shortly after the events of
September 11, 2001, a time during which the U.S. mails were
severely disrupted. Under these circumstances, and because
no other circumstances exist that would render a grant of
relief here problematic, I fail to see the need or utility for
remanding this matter. I therefore dissent.
Theodore F. Verheggen, Chairman
Distribution
Kelly A. Crown
CDG Materials, Inc.
P.O. Box 20758
Riverside, CA 95216
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006