The Doe Run Company

Plain-English summary

The Doe Run Company intended to contest a $55 proposed penalty for Citation No. 7860390, but it paid the assessment with sixteen other assessments and did not return the contest card. Doe Run said that the employee normally responsible for reviewing assessments was out of the country, which caused a lack of coordination. The Commission held that the omission and payment could qualify as inadvertence or mistake under Rule 60(b)(1). It granted Doe Run’s unopposed request for relief and reopened the penalty assessment. Commissioner Beatty dissented because he would have sent the matter to an ALJ to determine whether the evidence satisfied Rule 60(b).

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a) and 29 C.F.R. Part 2700
• Outcome: The Commission granted relief under Rule 60(b)(1) and reopened the final penalty assessment for Citation No. 7860390.
• Key point: An operator may obtain relief from a final assessment when the record supports inadvertent payment caused by mistake or an internal coordination failure.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    November 2, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2000-1-M
: A.C. No. 23-01787-05542
THE DOE RUN COMPANY :

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 October 1, 1999, the Commission received a request from
the Doe Run Company (“Doe Run”) 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). The
Secretary of Labor does not oppose the motion for relief filed by Doe Run.

   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).

    Doe Run asserts that it intended to contest the proposed penalty associated with Citation

No. 7860390 but that it did not submit a green card because it inadvertently paid the assessment
along with sixteen other assessments it intended to pay, which were issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) at the same time. Mot. at 2. Doe
Run asserts that it received Citation No. 7860390 on March 11, 1999, and that it filed a Notice of
Contest of that citation on April 6, 1999. Id. at 1-2. Such contest was assigned Docket No.
CENT 99-198-RM to Administrative Law Judge Gary Melick, who subsequently stayed the
contest proceeding pending the issuance of the proposed penalty assessment. Id. at 2. On April
22, 1999, MSHA issued the proposed assessments for seventeen citations, including $55 for

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Citation No. 7860390. Id. Doe Run asserts that it did not submit a green card with respect to
the proposed penalty for Citation No. 7860390 because the employee normally responsible
for the initial review of any proposed assessment, the safety administrator, was out of the
country on assignment. Id. at 2-3. Doe Run contends that, as a result of the apparent lack of
coordination between its employees in the safety administrator’s absence, it inadvertently
paid the assessment for Citation No. 7860390. Id. Accordingly, Doe Run requests relief
under Fed. R. Civ. P. 60(b). Attached to Doe Run’s motion are various documents, including
the proposed assessments issued by MSHA, a request for check and a copy of Doe Run’s
check for payment of the seventeen assessments. Exs. 1 & 2.

    We have held that, in appropriate cases and pursuant to Rule 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, 786-89 (May 1993); 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 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 National Lime &
Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613,
1614-15 (Oct. 1997).

    It appears from the record that Doe Run intended to contest the penalty related to

Citation No. 7860390 and that, but for an apparent lack of coordination between the
operator’s personnel, Doe Run would likely have returned the green card and contested the
proposed penalty assessment. While Doe Run does not deny receiving the proposed
assessment, its failure to submit the green card and payment of the proposed penalty
assessment can be reasonably found to qualify as “inadvertence” or “mistake” within the
meaning of Rule 60(b)(1). See Cyprus Emerald Resources Corp., 21 FMSHRC 592, 592-93
(June 1999) (granting motion to reopen where operator supported its allegation that it
mistakenly paid proposed penalty assessment with an affidavit); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997) (granting operator’s motion to reopen where operator
inadvertently paid assessment because Secretary failed to send assessment to its counsel on
record); Westmoreland Coal Co., 11 FMSHRC 275, 276-77 (Mar. 1989) (granting operator’s
motion to vacate dismissal and remanding for further proceedings where operator asserted it
mistakenly paid assessment); Tug Valley Coal Processing, 16 FMSHRC 216, 216-17 (Feb.
1994) (same).

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    Accordingly, in the interest of justice, we grant Doe Run’s unopposed request for

relief and reopen this penalty assessment that became a final order with respect to Citation
No. 7860390. The 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




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Commissioner Beatty, dissenting:

     On the basis of the present record, I am unable to evaluate the merits of Doe Run’s

position and would remand the matter for assignment to a judge to determine whether Doe
Run has met the criteria for relief under Rule 60(b). See Tug Valley Coal Processing, 16
FMSHRC 216 (Feb. 1994) (remanding to judge to determine whether payment of proposed
penalty amounted to “genuine mistake” sufficient to reopen civil penalty proceeding);
Westmoreland Coal Co., 11 FMSHRC 275 (Mar. 1989) (same). I note that Doe Run has
failed to provide any affidavits to support its assertion that it mistakenly paid the assessment
for a citation (No. 7860390) that it intended to contest. Compare Cyprus Emerald Resources
Corp, 21 FMSHRC 592 (June 1999).

                                          Robert H. Beatty, Commissioner

Distribution

R. Henry Moore, Esq.

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Buchanan Ingersoll
One Oxford Centre
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

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