REB Enterprises, Inc.

Plain-English summary

REB Enterprises, Inc. and two individuals asked the Commission to dismiss consideration of additional civil penalties after an administrative law judge assessed $1,400 for two orders. The Commission held that the operator had contested all proposed penalties instead of paying them within the statutory period, so the payment-acceptance provision did not prevent the later assessment. It reopened the proceeding, treated the motion as a petition for discretionary review, denied that petition, and directed payment of the $1,400 in penalties. The decision concerned four consolidated dockets and several earlier rulings about seat belts, machine guarding, and a wrong-standard allegation.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 820(i), 823(d)(1), and 823(d)(2)(A); 29 C.F.R. § 100.7(b)
• Outcome: The proceeding was reopened, the petition for discretionary review was denied, and $1,400 in penalties was ordered.
• Key point: Paying some penalties earlier did not bar assessment of penalties for orders that had previously been dismissed, or relief from the acceptance provision after the operator contested the proposed penalties.

Full text (FMSHRC public release)

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

                                     August 4, 1998

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. CENT 95-29-M
: CENT 95-30-M
REB ENTERPRISES, INC., : CENT 95-239-M
HAROLD MILLER, and : CENT 95-240-M
RICHARD BERRY :

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners1

                                        ORDER

BY THE COMMISSION:

   1
      Commissioner Beatty elected not to participate in the Commission=s March 30, 1998,

decision because he assumed office after the case had been considered at a Commission decisional
meeting. A new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1218 n.2 (June
1994). In the interest of efficient decision making, Commissioner Beatty continues to elect not to
participate in this matter.

    These civil penalty proceedings arise under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. ' 801 et seq. (1994) (AMine Act@). On September 5, 1996, Administrative Law
Judge Avram Weisberger issued a decision in which he, in part, determined that four violations by
REB Enterprises, Inc. (AREB@) were not the result of its unwarrantable failure to comply with
various standards,2 that REB did not violate section 30 C.F.R. ' 56.14130(a)(3) as alleged in
Order No. 4327626, and that Order No. 4327628 must be dismissed because it alleged a violation
of the wrong standard. 18 FMSHRC 1603, 1622-24 (Sept. 1996) (ALJ). On October 7, 1996,
REB paid $2,400 in civil penalties that were assessed by the judge for the violations. Id. at 1627.
On October 15, 1996, the Commission granted a petition for discretionary review filed by the
Secretary of Labor challenging the judge=s determinations.

    On March 30, 1998, the Commission issued a decision in which it, in part, vacated the

judge=s determination that the four violations were not the result of REB=s unwarrantable failure,
reversed the judge=s determination that REB did not violate section 56.14130(a)(3) as alleged in
Order No. 4327626, and vacated the judge=s dismissal of Order No. 4327628. 20 FMSHRC 203,
218-19 (Mar. 1998). The Commission remanded the matter to the judge for further consideration
and assessment of civil penalties. Id.

    In an April 24, 1998, remand decision, the judge affirmed his findings that the four

violations were not unwarrantable. 20 FMSHRC 455, 456-59 (Apr. 1998) (ALJ). In addition, he
found that the violations alleged in Order Nos. 4327626 and 4327628 were not unwarrantable and
assessed $1,400 in civil penalties for the two violations. Id. at 458-59.

   On April 30, 1998, the Commission received REB=s Motion to Dismiss Consideration of

Further Penalties.3 Relying on section 100.7(b) of the Secretary=s civil penalty assessment
procedures, 30 C.F.R. ' 100.7(b),4 REB argues that since it had already paid the civil penalties
2
The four violations are as follows: Citation No. 4327776 alleging a violation of 30
C.F.R. ' 57.14131(a) for failure of a haul truck driver to wear a seat belt; Order Nos. 4327622
and 4327625 alleging violations of 30 C.F.R. ' 56.14130(g) for failure of bulldozer drivers to
wear seat belts; and Order No. 4327631 alleging a violation of 30 C.F.R. ' 56.14107(a) for failure
to guard the tail pulley of a radial stacker conveyor belt. 18 FMSHRC 1603, 1607, 1610-12,
1614-16, 1619-21, 1624-25 (Sept. 1996) (ALJ).
3
The certificate of service attached to the motion indicates that it was mailed on April 27,
1998.
4
Section 100.7(b) states, in part:

                     Upon receipt of the notice of proposed penalty, the party
             charged shall have 30 days to: (1) Pay the proposed assessment
             (acceptance by MSHA of payment tendered by the party charged
             will close the case); or, (2) notify MSHA in writing of the intention
             to contest the proposed penalty.

assessed by the judge in his initial decision, and since MSHA had accepted the payment prior to
the Commission=s decision, the Secretary is Aestopped from seeking to augment penalties based on
the same violations.@ Mot. at 1.

    On May 12, 1998, the Commission received the Secretary=s opposition to the motion.

Therein, the Secretary asserts that the Aacceptance@ provision of section 100.7(b) Aapplies only if,
within 30 days of receipt of the proposed penalty, the charged party pays the proposed penalty
instead of contesting the proposed penalty.@ Opp=n at 1-2. She argues that, since REB contested
the proposed penalties instead of paying them within 30 days of receipt, REB cannot now invoke
the Aacceptance@ provision of section 100.7(b). Id. at 2. In addition, the Secretary argues that,
even if the Aacceptance@ provision could be invoked to prevent her from seeking increased
penalties, it could not prevent the Commission from assessing increased penalties because the
Commission has authority to assess penalties de novo. Id. at 2-3 (citing 30 U.S.C. ' 820(i);
Wallace Bros., Inc., 18 FMSHRC 481, 483-84 (Apr. 1996); Sellersburg Stone Co., 5 FMSHRC
287, 290-93 (Mar. 1983)). Further, in light of the judge=s remand decision affirming his
unwarrantable failure findings with respect to the four violations and, thus, affirming the penalty
amounts, the Secretary notes that if she does not petition for discretionary review, REB=s motion
will be moot. Id. at 4 n.2. Subsequently, the Secretary did not seek review of the judge=s remand
decision.

   On June 15, 1998, REB submitted a letter to the Commission in which it states that it

Awants to hold . . . in abeyance [the paying of the $1,400 civil penalties for the violations alleged
in Order Nos. 4327626 and 4327628] until the Commission makes a decision on . . . [the
m]otion.@ REB asserts that, if the motion is granted, then it would not owe the penalties.

    The judge=s jurisdiction over this case terminated when his remand decision was issued on

April 24. 29 C.F.R. ' 2700.69(b). 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);
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). REB=s motion
was received by the Commission on April 30, within 30 days of the judge=s decision. The
Commission did not act on the motion and the judge=s decision became a final decision of the
Commission 40 days after its issuance.

     A final Commission judgment or order may be reopened under Fed. R. Civ. P. 60(b)(1) &

(6) in circumstances such as mistake, inadvertence, excusable neglect, or other reasons justifying
relief. 29 C.F.R. ' 2700.1(b) (Federal Rules of Civil Procedure apply Aso far as practicable@ in the
absence of applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May
1991). In the interest of justice, we reopen this proceeding and deem REB=s motion to be a
petition for discretionary review, which we deny. See Remp Sand & Gravel, 16 FMSHRC 501,
502 (Mar. 1994) (reopening proceeding after decision became final due to Commission=s inaction
on letter deemed to be timely filed petition).
In its motion, REB asserts that the Secretary is estopped from Aaugmenting@ the penalties
that it had previously paid and that the Secretary had accepted. Mot. at 1 && 2, 3. However, in
his remand decision, the judge did not augment the four penalties that REB had previously paid.
By affirming his initial decision that the four violations were not unwarrantable, the judge, in
effect, merely affirmed the penalties that he had previously assessed. 20 FMSHRC at 456-59.
Accordingly, REB=s argument has no basis.

    In addition, it appears that REB is arguing that, because it paid penalties for all violations

and the Secretary accepted those payments, it cannot be assessed further penalties. Mot. at 1;
Letter dated June 15, 1998. However, Order Nos. 4327626 and 4327628 were initially dismissed
by the judge. 18 FMSHRC at 1622-24. Accordingly, REB never paid penalties for those orders
and the Secretary never accepted payment for them. The assessment of penalties for those orders
in the sum of $1,400 by the judge in his remand decision was not an augmentation, but an initial
assessment. In any event, we agree with the Secretary that REB cannot invoke the Aacceptance@
provision of section 100.7(b) because it contested all six of the proposed penalties instead of
paying them within 30 days upon receipt of the Secretary=s notice of proposed penalties. See
30 C.F.R. ' 100.7(b)(2).

    Based on the foregoing, we reopen this proceeding, deem the motion to be a petition for

discretionary review, and deny the petition. Accordingly, REB=s motion is denied. REB is
directed to pay $1,400 in civil penalties for the violations contained in Order Nos. 4327626 and
4327628.

                                           Mary Lu Jordan, Chairman

                                           Marc Lincoln Marks, Commissioner
                                    James C. Riley, Commissioner

                                    Theodore F. Verheggen, Commissioner

Distribution

James E. Crouch, Esq.
Cypert, Crouch, Clark & Harwell
111 Holcomb Street
P.O. Box 1400
Springdale, AR 72765-1400

James B. Crawford, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

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