FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
November 13, 2007
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. YORK 2008-13-M
: A.C. No. 18-00030-117852
v. :
:
JOHN SHABRACH, employed by :
D.M. STOLTZFUS & SON, INC. :
BEFORE: Duffy, Chairman; Jordan 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 October 11, 2007, the Commission received from John
Shabrach (“Shabrach”) a motion by counsel seeking to reopen a penalty assessment against
Shabrach under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that may have become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
In May 2007, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) apparently issued a proposed penalty assessment to Shabrach, alleging that he was
personally liable under section 110(c) of the Mine Act for an order issued to his employer, D.M.
Stoltzfus & Son, Inc.
In his motion, Shabrach asserts that MSHA mailed the proposed penalty
assessment to him at an address that was incorrect. Accordingly, Shabrach states that he never
received the proposed assessment form and that the first time he learned of the proposed
assessment was when he received on or about September 4, 2007, a delinquency notice from
MSHA dated August 13, 2007, stating that the proposed penalty assessment had become a final
order of the Commission. On October 3, 2007, counsel for Shabrach sent a letter to MSHA
contesting the penalty assessment. The Secretary states that she does not oppose Shabrach’s
request to reopen the penalty assessment.
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).
On the basis of the present record, we are unable to determine when the proposed penalty
assessment was issued, to whom it was sent, and how it was addressed. We are also unable to
determine from this record when Shabrach received the second notice and whether his counsel’s
letter of contest qualified as a timely notification to the Secretary of a contest of the proposed
penalty. If counsel timely contested the proposed penalty assessment, it would not be a final
order of the Commission. See Stech, emp. by Eighty-Four Mining Co., 27 FMSHRC 891, 892
(Dec. 2005).
Having reviewed Shabrach’s request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Shabrach failed to timely
contest the penalty proposal and, if so, whether good cause exists for granting relief from the
final order. If it is determined 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. The Chief
Administrative Law Judge shall also determine whether this case should be consolidated with
Docket No. YORK 2007-66-M.
____________________________________
Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution:
Thomas Benjamin Huggett, Esq.
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, 22nd Floor, West
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001