Mid-Tex Minerals, Inc.

Plain-English summary

Mid-Tex Minerals asked the Commission to reopen an approved settlement and payment order. The operator said it did not understand that telephone discussions with MSHA had produced a final settlement and had sent MSHA a letter saying the discussions were unsatisfactory. The Secretary said the MSHA representative mailed a proposed agreement, waited five days without a response, and then filed it with the Commission. Because the record showed a factual dispute about whether the parties had actually agreed, the Secretary requested a remand. The Commission vacated the settlement decision and returned the case to the Chief ALJ for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(1) and (d)(2)(A)(i); 29 C.F.R. §§ 2700.1(b) and 2700.70(a)
• Outcome: The settlement approval and payment order were vacated, and the matter was remanded for resolution of the factual dispute.
• Key point: A settlement order may be reopened when the record raises a genuine dispute about whether the operator accepted the proposed agreement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 22, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MID-TEX MINERALS, INC.

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Docket No. CENT 2011-522-M
A.C. No. 41-00308-246408

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On November 21, 2011, the Commission received from Mid-Tex Minerals, Inc. (“Mid-Tex”) a motion seeking to reopen a settlement agreement and relieve it
from the order to pay entered against it.

On October 28, 2011, Chief Administrative Law Judge Lesnick issued a Decision
Approving Settlement and an Order to Pay in response to the Conference and Litigation
Representative’s (“CLR”) motion to approve the proposed settlement.

Mid-Tex asserts that it did not understand that its telephone discussions with the CLR
were considered a final response to the settlement agreement. Mid-Tex further states that it had
contested and requested a hearing on this matter, but was never contacted by MSHA. It appears
from Mid-Tex’s enclosed documents that it sent a letter, which was received by MSHA on
August 17, 2011, stating that the discussion with the CLR had not been satisfactory.

The Secretary asserts that the CLR in this case drafted a settlement agreement and
proposed order based on his discussion with the operator, and sent the proposed agreement and
order to the operator. After waiting for five days and having received no response, the CLR
submitted the settlement agreement and proposed order to the Commission. It appears that the
CLR mailed the documents to Mid-Tex on August 15, 2011, and filed them with the
Commission on August 19, 2011. Because there appears to be a factual dispute about what
happened in this case, the Secretary requests that the Commission assign this case to the Chief
Administrative Law Judge for resolution of that dispute.

Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final
decision of the Commission.

In evaluating requests to reopen final 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 mistake, inadvertence, or excusable
neglect. 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”); Jim Walter Res., Inc., 15 FMSHRC 782,
786-89 (May 1993) (“JWR”). 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).

Having reviewed Mid-Tex’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding, vacate the decision, and remand this matter to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Frank D. Shemanski

Owner

Mid-Tex Minerals, Inc.

P. O. Box 389

Flatonia, TX 78941

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021