Ramblin Coal Company, Inc. (Commission decision, January 14, 1993)

Plain-English summary

An ALJ had dismissed citations involving MSHA's excessive-history penalty program after staying the proceedings while related Commission cases were decided. The Secretary filed a motion for reconsideration with the ALJ but did not file a timely petition for discretionary review, so the dismissal became final. The Commission treated a later status letter as a request for relief from that final decision and found that the ALJ may have erred by failing to remand the penalty proposals for recalculation. It reopened the matter, vacated the dismissal, and remanded the case for the ALJ to decide whether relief was warranted and, if appropriate, send the penalties back to the Secretary for recalculation.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801, 823(d)(1), 823(d)(2)(A)(i), and 823(d)(2)(B); 29 C.F.R. §§ 2700.1, 2700.65(c), and 2700.70(a)
• Outcome: The Commission reopened the matter, vacated the ALJ's dismissal of the citations, and remanded for further consideration.
• Key point: The Commission may provide relief from a final decision when a later record suggests that an ALJ may have dismissed penalty proposals that should instead have been recalculated.

Full text (FMSHRC public release)

January 14, 1993

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
:
v. : Docket Nos. KENT 90-429
: KENT 90-430
RAMBLIN COAL COMPANY, INC.
:
:
:

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)("the Mine Act"). On July 1, 1991, Administrative Law Judge William Fauver entered an unpublished order staying further proceedings in this case on various citations for which the Secretary of Labor had proposed civil penalties in accordance with her "excessive history" program set forth in Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), pending this Commission's decision in Hobet Mining Inc., No. WEVA 91-65. Hobet involved the validity of the excessive history program. On June 22, 1992, the judge issued a decision lifting that stay and dismissing "the citations charging excessive history violations...." 14 FMSHRC 1025, 1032 (June 1992)(ALJ). On July 6, 1992, before the judge's decision became final, the Secretary filed with the judge a motion for reconsideration, which asserted that the Commission's decision in Drummond Co., Inc., 14 FMSHRC 661 (May 1992), required remand of the penalty proposals to the Secretary for recalculation. The record indicates that the judge did not rule on the Secretary's motion.

The judge's jurisdiction terminated when his decision to dismiss the citations was issued. 29 C.F.R. 2700.65(c). Although the Secretary filed a motion for reconsideration with the judge, she did not file a petition for discretionary review of the decision within the 30-day period prescribed by the Mine Act. 30 U.S.C. 823(d)(2)(A)(i); see also 29 C.F.R. 2700.70(a). Nor did the Commission direct review on its own motion. 30 U.S.C. 823(d)(2)(B). Thus, the judge's decision became a final decision of th Commission 40 days after its issuance. 30 U.S.C. 823(d)(1).

The Secretary's counsel sent to the judge a letter dated December 15, 1992, inquiring as to status of the Secretary's motion for reconsideration. Under the circumstances, we consider this letter to be a request for relief from a final Commission decision incorporating by implication a late-filed

petition for discretionary review. See, e.g., Transit Mixed Concrete Co., 13 FMSHRC 175, 176 (February 1991). Relief from a final judgment or order of the Commission is available to a party under Fed. R. Civ. P. 60(b)(1) & (6) on the basis of inadvertence, mistake, surprise, excusable neglect, or any other reason justifying relief. See 29 C.F.R. 2700.1 (Federal Rules of Civil Procedure apply, "so far as practicable" and "as appropriate," in the absence of applicable Commission rules). See, e.g., Klamath Pacific Corp., 14 FMSHRC 535, 536 (April 1992).

In both Drummond, 14 FMSHRC at 692, and Hobet, 14 FMSHRC 717, 721 (May 1992), the Commission remanded to the Secretary for recalculation civil penalties that had been initially proposed in accordance with the PPL. It appears that the judge may have erred in failing to remand the subject civil penalties to the Secretary for recalculation. The judge did not set forth a rationale for his dismissal of "the citations charging excessive history violations." 14 FMSHRC at 1032. Accordingly, we conclude that this case should be reopened and remanded to the judge for his determination of whether final relief from the decision to dismiss the citations is warranted. If the citations were dismissed solely because the penalty proposals were made in accordance with the excessive history program set forth in the PPL, the judge is directed to remand the penalty proposals to the Secretary for recalculation in accordance with Drummond.

For the foregoing reasons, we grant the Secretary's petition for discretionary review, reopen this matter, vacate the judge's dismissal of the previously stayed citations, and remand this matter to the judge for further consideration.