Upper Valley Materials

Plain-English summary

Upper Valley Materials asked to reopen a penalty assessment after filing its hearing request late. The unrepresented company said it was unfamiliar with Commission procedures, was in a transitional state, and would face a serious burden from the penalty. The Secretary did not oppose the request. The Commission remanded the matter for a judge to determine whether relief under Rule 60(b) was appropriate, without deciding the penalty on the merits.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.60(b)
• Outcome: The request to reopen the final assessment was remanded for a judge's determination under Rule 60(b).
• Key point: A late contest by an unrepresented operator may warrant fact-finding on whether Rule 60(b) relief is available.

Full text (FMSHRC public release)

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

                                     February 7, 2001

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2000-434-M
: A.C. No. 41-03510-05529
UPPER VALLEY MATERIALS :

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

                                           ORDER

BY: Jordan, Chairman; Beatty, Commissioner

   This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) (“Mine Act”). On August 21, 2000, the Commission received from Upper
Valley Materials (“Upper Valley”) 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 Upper Valley.

   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, Upper Valley, which is unrepresented by counsel, asserts that the late filing of

its hearing request to contest the proposed penalty was due to lack of familiarity with Commission
procedure. Mot. Upper Valley contends that it is going through a transitional state and that the
penalty would place a sincere burden on the company. Id. Upper Valley requests that the
Commission reopen the final order. Id.

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    We have held that, in appropriate circumstances and pursuant to Rule 60(b), 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); 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 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 Upper Valley’s

position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Red Coach has met the criteria for relief under Rule 60(b). See, e.g., Ogden Constructors,
Inc., 22 FMSHRC 5, 7 (Jan. 2000) (remanding to a judge where operator mistakenly believed that
proceeding was suspended while under MSHA investigation); M & Y Servs., Inc., 19 FMSHRC
670, 671-72 (Apr. 1997) (remanding to a judge where the operator failed to timely submit a
hearing request because it allegedly did not receive assistance regarding the proper contest
procedure until the deadline for filing had passed). 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, Chairman




                                        Robert H. Beatty, Jr., Commissioner




                                    23 FMSHRC 131

Page 3

Commissioners Riley and Verheggen, concurring in result:

    We would grant the operator’s request for relief here, because the Secretary does not

oppose and the operator has offered a sufficient explanation for its failure to timely respond.
However, in order to avoid the effect of an evenly divided decision, we join in remanding the case
to allow the judge to consider whether the operator has met the criteria for relief under
Commission Procedural Rule 60(b), 29 C.F.R. § 2700.60(b). See Pa. Elec. Co., 12 FMSHRC
1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing that
the effect of a split Commission decision is to leave standing disposition from which appeal has
been sought).

                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                    23 FMSHRC 132

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Distribution

Mark Jackson, Safety Director
Upper Valley Materials
7301 W. Exp. 83
Mission, TX 78572

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

                                23 FMSHRC 133