Northern Kansas Rock, Inc.

Plain-English summary

Northern Kansas Rock, a small family-owned company, missed the 30-day deadline to contest proposed civil penalties after the owners were away and dealing with serious health problems. The Commission majority found that the company intended to contest the penalties and that the circumstances qualified as inadvertence or mistake under Rule 60(b)(1). It reopened the penalty assessments so the case could proceed under the Mine Act and Commission rules. The Chairman and another Commissioner dissented, stating that the record should first be remanded to a judge to determine whether Northern Kansas met the criteria for relief.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The Commission majority granted relief and reopened the penalty assessments; two Commissioners would have remanded for a factual determination.
• Key point: The Commission treated the operator's illness-related failure to file on time as potential inadvertence or mistake warranting reopening.

Full text (FMSHRC public release)

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

              1730 K STREET NW, 6TH FLOOR

                WASHINGTON, D.C.  20006


                     April 7, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2000-162-M
: (A.C. No. 14-01488-05510)
NORTHERN KANSAS ROCK, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners

                          ORDER

BY: 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 February 28, 2000, the Commission received from Northern
Kansas Rock, Inc. ("Northern Kansas") a request 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 Northern Kansas.

 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 her February 18 letter, Bobbie Goebel states that she and

her husband are owners of Northern Kansas and claims that it is a
"Mom & Pop company." Mot. She asserts that Northern Kansas'
failure to file a hearing request to contest the proposed
penalties was due to their absence as a result of her husband's
illness. Id. Mrs. Goebel explains that Mr. Goebel was unable to
work because of knee pain, and that Mr. and Mrs. Goebel went on
vacation from December 11, 1999 to January 23, 2000. Id. She
states that when they returned, Mr. Goebel underwent knee
surgery, and that she was ill following the surgery. Id. Mrs.
Goebel asserts that while she and Mr. Goebel were on vacation,
their son signed the return receipt for the subject proposed
penalty assessment on January 11, but because of the course of
events that took place, they were unable to file the hearing
request prior to the 30-day deadline for filing. Id. As a
result, the proposed penalty assessment became a final order of
the Commission on February 10, 2000. Attached to the request to
reopen is a copy of the hearing request dated February 17, 2000.
Mrs. Goebel requests an opportunity to contest the proposed
penalties. Id.

 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). See, e.g., Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994); Jim Walter Resources, Inc., 15 FMSHRC
782, 786-89 (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 National
Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal
Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining Co.,
19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (Sept. 1996).

 Here, it appears that Northern Kansas intended to contest

the proposed penalty assessments in this matter and that, but for
the medical condition of Mr. and Mrs. Goebel, it would have
timely submitted the hearing request and contested the proposed
assessments. In these circumstances, Northern Kansas' failure to
timely file a hearing request qualifies as "inadvertence" or
"mistake" within the meaning of Rule 60(b)(1). See Tigue
Construction Co., 21 FMSHRC 9, 10-11 (Jan. 1999) (granting
operator's request where serious illness of vice-president
resulted in operator's failure to timely file); Kenamerican
Resources, 20 FMSHRC 199, 201 (Mar. 1998) (granting operator's
motion to reopen when operator's failure to timely file hearing
request was due to recent surgery performed on its safety
director).

 Accordingly, in the interest of justice, we grant Northern

Kansas' unopposed request for relief and reopen these penalty
assessments that became final Commission orders. This case shall
proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

                          Marc Lincoln Marks, Commissioner

                          James C. Riley, Commissioner

                          Theodore F. Verheggen, Commissioner

Chairman Jordan and Commissioner Beatty, dissenting:

 On the basis of the present record, we are unable to

evaluate the merits of Northern Kansas' position and would remand
the matter for assignment to a judge to determine whether
Northern Kansas has met the criteria for relief under Rule 60(b).
See Wolf Creek Sand & Gravel, 21 FMSHRC 1, 1-2, 3 (Jan. 1999)
(remanding to judge to determine whether operator's claim that it
failed to timely file due to secretary's absence as a result of
husband's health problems met criteria for relief under Rule
60(b)); Miller employed by Mid-Wisconsin Crushing Co., 16 FMSHRC
2384, 2385 (Dec. 1994) (remanding where the movant claimed he
failed to timely file his hearing request due to secretary's
absence because of her mother's terminal illness). We also note
that Northern Kansas has failed to provide any affidavits or
other sufficiently reliable documents to substantiate its
allegations.

                          Mary Lu Jordan, Chairman

                          Robert H. Beatty, Jr., Commissioner

Distribution

Bobbie Goebel, Executive Director
Northern Kansas Rock, Inc.
P.O. Box 157
Phillipsburg, KS 67661

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 David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006