BR&D Enterprises, Inc.

Plain-English summary

BR&D Enterprises asked to reopen a penalty assessment after it said it mailed a hearing request by certified mail on December 27, 1999, but the request was not delivered to MSHA. The company supplied a postal receipt and related correspondence, but the receipt did not show what it had sent. The Commission remanded the matter to a judge to determine whether BR&D met the criteria for relief under Rule 60(b). A footnote states that Commissioners Marks and Verheggen would have granted the motion because the Secretary did not oppose reopening.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The request to reopen was remanded for a judge to determine whether Rule 60(b) relief was appropriate.
• Key point: A mailing receipt alone did not establish what the operator had sent, so the Commission left the reopening question for factual review.

Full text (FMSHRC public release)

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

              1730 K STREET NW, 6TH FLOOR

                WASHINGTON, D.C.  20006


                     April 4, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 2000-90
: A.C. No. 15-18028-03513
BR&D ENTERPRISES, INC. :

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

                          ORDER

BY: Jordan, Chairman; Riley and Beatty, 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 18, 2000, the Commission received from BR&D Enterprises,
Inc. ("BR&D"), a letter requesting that the Commission reopen
penalty assessments that had become final orders 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 BR&D.

 Under section 105(a) of the Mine Act, an operator has 30 days

following receipt of the Secretary'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 the February 18 letter, Mr. Roan asserts that BR&D timely

filed its hearing request on December 27, 1999, via certified
mail, but that for some unknown reason it was not successfully
delivered to the Civil Penalty Compliance Office at the Department
of Labor's Mine Safety and Health Administration ("MSHA"). Mot.
BR&D claims that it never received the return receipt for its
mailing and that it is coordinating with the U.S. Postal Service
to ascertain why it was never delivered. Id. BR&D attached to
its February 18 letter various documents, including a U.S. Postal
Service receipt for certified mail showing that BR&D mailed a
package to MSHA's Civil Penalty Compliance Office in Arlington,
Virginia on December 27, 1999; a letter from MSHA to BR&D dated
January 4, 2000; MSHA's proposed penalty assessment and a
delinquent payment notice from MSHA; and a letter dated February
18, 2000 from BR&D to MSHA's Civil Penalty Compliance Office.
Attach. A-D. According to its February 18 letter to MSHA, BR&D
mailed hearing requests for the proposed penalty assessment it
currently seeks to reopen, along with another proposed penalty
assessment in a separate case, on December 27, 1999. Mot.;
Attach. A. It received a letter from MSHA dated January 4, 2000
regarding the second case. Attach. C. BR&D requests an
opportunity to contest the proposed penalty assessments. Mot.

 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). 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 Kinross DeLamar Mining Co., 18
FMSHRC 1590, 1591-92 (Sept. 1996); General Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Drummond Co., 17 FMSHRC 883, 884 (June 1995).

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

the merits of BR&D's position.[1] The receipt for certified mail
does not indicate what BR&D sent to MSHA's Civil Penalty
Compliance Office in Arlington, Virginia. In the interest of
justice, we remand the matter for assignment to a judge to
determine whether BR&D has met the criteria for relief under Rule
60(b). If the judge determines that relief under Rule 60(b) is
appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700. See
Western Aggregates, Inc., 20 FMSHRC 745 (July 1998) (remanding to
a judge where the operator alleged that it mailed its request to
the wrong MSHA office, attaching its correspondences with MSHA and
a Federal Express "sender activity summary" which failed to
indicate what had been sent).

                          Mary Lu Jordan, Chairman

                          James C. Riley, Commissioner

                          Robert H. Beatty, Jr., Commissioner

Distribution

Michael Road, Administrative Assistant
BR&D Enterprises, Inc.
P.O. Box 228
Middlesboro, KY 40965

Sheila Cronan, 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

FOOTNOTES

 [1]    In view of the fact that the Secretary does not oppose

BR&D's motion to reopen this matter for a hearing on the merits,
Commissioners Marks and Verheggen conclude that the motion should
be granted.