R B Coal Company, Incorporated

Plain-English summary

R B Coal Company missed the 30-day deadline to request a hearing on two Mine Act assessments totaling $2,700. The company's engineer explained that the request was misplaced while the small operator was handling many assessments and computerizing its records. Judge Paul Merlin found no prejudice to the Secretary, credited the engineer's good-faith explanation, and treated the delay as excusable neglect. He reopened the case and ordered the Secretary to file the penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 814(a) and 814(d); 29 C.F.R. §§ 2700.26 and 2700.28
• Outcome: The case was reopened, and the Secretary was ordered to file the penalty petition within 45 days.
• Key point: A short, isolated late filing by an uncounseled small operator may be excused when the delay causes no prejudice and the evidence shows good faith.

Full text (FMSHRC public release)

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

                      November 28, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-596
Petitioner : A. C. No. 15-17077-03543
v. :
: RB No. 5 Mine
R B COAL COMPANY, :
INCORPORATED, :
Respondent :

                     DECISION TO REOPEN
               ORDER TO FILE PENALTY PETITION

Appearances: Mark Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Richard D. Cohelia, R B Coal Company Inc.,
Pathfork, Kentucky, for Respondent.

Before: Judge Merlin

 The issue presented is whether the operator may be allowed

to proceed to a hearing on the merits of its claim or whether the
case should be dismissed because the operator did not request a
hearing within the period allowed by the Mine Act and Commission
regulations.

 On November 28, 1994, an inspector of the Mine Safety and

Health Administration issued to the operator Citation No. 4247308
under section 104(d) of the Act, 30 U.S.C. ' 814(d). On the same
date the operator was also issued Order No. 4247309 under section
104(d). Thereafter, on March 23, 1995, the Mine Safety and
Health Administration issued a Notice of Proposed Assessment for
the subject citation and order as well as for a citation issued
under section 104(a).1 The notice advised the operator that it
had 30 days from the date it received the proposed assessment to
either pay or notify MSHA that it wished to contest the proposed
assessment and was requesting a hearing. The notice further told
the operator that if it did not exercise these rights within 30
days, the proposed assessment would become a final order of the
Commission. The notice was mailed certified mail return receipt
requested and received by the operator on March 28, 1995.
The 30th day from the date of the operator=s receipt of the
1
The 104 (a) citation was paid and is not involved in this
case.

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proposed assessment was April 27, 1995. MSHA=s Civil Penalty
Compliance Office received a request for hearing from the opera-
tor which is date stamped May 26, 1995. The hearing request is
signed and dated May 12, 1995, by the operator=s engineer. On
June 8, 1995, MSHA wrote the operator that the proposed assess-
ment was final and that the hearing request could not be honored
because the case had not been timely contested.

 On June 16, 1995, the operator through its engineer wrote

the Commission seeking permission to contest these civil penalty
assessments. The operator admitted that it had failed to contest
the assessments within the 30 day period specified in section
105(a) of the Act, 30 U.S.C. ' 815(a), and section 2700.26 of
Commission regulations, 29 C.F.R. ' 2700.26. According to the
engineer=s letter, the hearing request was not filed on time
because it was misplaced in the paperwork of numerous assess-
ments. The letter further stated that the company had just
recently begun implementing a program aimed at contesting cita-
tions which it considered excessive and that it was learning by
trial and error, because it would be more expensive to hire an
attorney than pay the assessments.

  On July 18, 1995, the Commission issued an order treating

the operator=s letter as a petition for discretionary review and
stated that it was unable to evaluate the merits of the opera-
tor=s position. Therefore, it remanded the case for a determina-
tion whether relief was appropriate under applicable criteria.
17 FMSHRC 1110.

 On July 25, 1995, I issued an order requiring the Solicitor

to show cause why the case should not be assigned to an Adminis-
trative Law Judge for disposition on the merits. Thereafter, on
August 14, 1995, the Solicitor filed a response to the order to
show cause, asserting that the operator had not demonstrated that
it was entitled to relief and arguing that even if the reasons
advanced justified relief, they were not presented in such a
manner as to obviate the need for a hearing.

 Attached to the Solicitor=s motion were copies of the

citation and order issued to the operator for the alleged viola-
tions which had been designated significant and substantial and
due to unwarrantable failure. Also attached was a copy of the
notice of the proposed assessment, dated March 23, 1995, together
with the assessment sheet. The first alleged violation was
assessed at $1,200 and the other at $1,500.

 A notice of hearing was issued on September 28, 1995, and a

hearing was held on November 1, 1995.

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 At the hearing the operator=s engineer testified that he is

the individual at the mine who is served with citations and
orders, receives the notices of proposed assessments, and decides
whether to pay or contest them (Tr. 5-6, 10-11). He is the only
person at the mine who performs these tasks. Because the opera-
tor is small with only 100 to 120 total employees and in view of
the present state of mining, he has many other duties to perform
(Tr. 16, 58). These other duties include training new employees,
performing surveys, taking dust samples, inspecting sections
before the MSHA inspector comes and accompanying the inspectors
on their inspections (Tr. 5-6, 16). After receiving a citation
he disagrees with, the engineer has a closeout conference with
the inspector and if the matter remains unresolved, a health and
safety conference is held and if a resolution is not reached, he
requests a hearing before the Commission (Tr. 6-7). All cita-
tions issued by an inspector on the same day do not come on the
same proposed assessment notice (Tr. 8). If a citation is going
to be paid, the engineer tries to stagger payments depending upon
the operator=s cash position at the particular time so that a few
are paid at a time (Tr. 12). Therefore, citations he decides to
pay are not always forwarded immediately to the operator=s
corporate office for payment (Tr. 12). If he decides to appeal
to the Commission, he also staggers mailing hearing requests so
that hearings will not all be at the same time (Tr. 28, 47-48).
Due to his other responsibilities he cannot spend all his time
during a given period contesting citations (Tr. 16). According
to the engineer, the operator routinely contests citations and
orders issued under section 104(d) of the Act, supra, because it
disagrees with the findings of significant and substantial and
unwarrantable failure (Tr. 7, 30). Also the assessments in these
cases are expensive and significant and substantial findings
count toward their Apattern of violations@ under section 104(e),
30 U. S. C. ' 814(e) (Tr. 32). In the engineer=s opinion these
findings have been excessive and he has been successful in having
them changed and securing settlements (Tr. 30-31, Op. Exh. No.
3). He does not necessarily let 104(a) citations slide either
(Tr. 11).

 The engineer testified that two or three months before he

received the notice of proposed assessment in this case, he
obtained a new computer (Tr. 8-9). When he received this notice,
he was entering on the computer citations and notices of assess-
ment back to 1993 (Tr. 25, 51). For each case he enters the
citation number, the assessment control number, dollar amount,
prior action, and status (Tr. 9-10, Op. Exh. No. 3). This case
is the only time he failed to request a hearing timely (Tr. 59-
60). After the late filing in this case, he purchased additional

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software whereby he now has a daily calender and can bring up
deadlines (Tr. 49-50). If he had had this software when he
received this notice, he would not have been late (Tr. 50).

 The engineer explained that it is his practice to put

contested citations in a file cabinet with their number on the
file (Tr. 27). Citations that are to be paid are placed in a
basket on his desk to be taken to the corporate office at
Brookside which is 40 miles away (Tr. 10-11, 25). He circles the
citations he is going to contest and leaves a note for the ones
to be paid (Tr. 37, Gov=t. Exh. 1). He knew when he first saw
the 104(d) citation and order in this case that they would be
appealed (Tr. 28). At that time he was working on about 20
assessment sheets (Tr. 14-15). He could have filled out the
explanation portion of the hearing request entered the data on
the same day he received the proposed assessment, a couple of
days later or even 15 days later (Tr. 28-29, 38-40). Several
orders were issued by the inspector at that particular time and
the engineer tried to space them out (Tr. 29). He does not
dispute the date of receipt as March 28 and said that the return
receipt card had been signed by an individual who works in the
warehouse (Tr. 34-35). Subsequently, on May 12 he signed the
hearing request and gave it to be mailed (Tr. 42-43). As already
stated, he staggers hearing requests so that all the hearings
will not occur at the same time, and he did not intend this
request to be late (Tr. 48). The engineer did not know why the
request was mailed almost two weeks after he signed it (Tr. 33).
When he signs a request for hearing he gives it to the office
worker to mail (Tr. 33-34). He subsequently found the request
for hearing in the basket for assessments to be paid, which was
the wrong pile (Tr. 25, 29, 49). Mail goes to several different
places and may have been put in the wrong pile or misplaced (Tr.
47). The individual working in the office who is responsible for
mailing is a miner=s widow and does not know too much about
secretarial work (Tr. 46). She just more or less answers the
telephone (Tr. 34). She could have sent the hearing request to
Brookside by mistake (Tr. 47).

 According to the engineer, all citations issued on the same

day do not come out in the same notice of proposed assessment and
assessment sheet (Tr. 8). The number of notices and assessment
sheets vary (Tr. 8). As previously set forth, the citation and

order at issue were included in the notice of proposed assess-
ment, and constitute the items in this docket number. However,
on November 28, 1994, the day these items were issued, two more
citations also were issued (Tr. 29, Op. Exh No. 2). All these

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items were considered at the same Health and Safety Conference
(Tr. 17 Op. Exh. No. 2). However, the other two citations were
in a different notice of proposed assessment and therefore, when
a hearing was requested for them, they were in a different docket
number (Tr. 18). I take official note that according to Commis-
sion records the docket number for those citations is KENT 95-343
and that the Secretary=s penalty petition there was filed late by
a Conference and Litigation Representative (ACLR@), 29 C.F.R.
' 2700.28. The reasons given for the late filing were the
newness of the CLR program in which non lawyer MSHA employees
represent the Secretary in selected cases, and the confusion of
the CLR over the correct contest date. On May 26, 1995, I
accepted the explanations offered and issued an order accepting
the Secretary=s petition. I noted that the CLR program repre-
sents a new approach which I had approved in prior cases. I also
pointed out that the operator was not prejudiced by the delay.
Subsequently those cases were settled (Tr. 19, 21).

 Section 105(a) of the Act, supra, provides that an operator

has 30 days within which to notify the Secretary that it wishes
to contest the citation or proposed assessment. If within 30
days of receipt of the Secretary=s notification, the operator
fails to notify the Secretary that it intends to contest the
citation or proposed assessment, the proposed assessment becomes
a final order of the Commission. Id. In Jim Walter Resources,
Inc., 15 FMSHRC 782 (May 1993), the Commission held that it has
jurisdiction to decide whether final judgments can be reopened.

 Commission Rule 1(b) provides that the Commission and its

judges shall be guided so far as practicable by the Federal Rules
of Civil Procedure. 29 C.F.R. ' 2700.1(b). In its July 18
order, the Commission once again stated that it possesses juris-
diction to reopen uncontested assessments which have become final
under section 105(a), supra, and that these determinations are
made with reference to Federal Rule 60(b). Federal Rule 60(b)(1)
provides as follows:

      On motion and upon such terms as are just,
      the court may relieve a party or a party=s
      legal representative from a final judgment,
      order, or proceeding for the following rea-
      sons: (1) mistake, inadvertence, surprise, or
      excusable neglect *   *    *.

 In Pioneer Investment Services Company v. Brunswick Associ-

ates Limited Partnership, 113 S. Ct. 1489 (1993), 123 L.Ed 2d 74,
the Supreme Court recognized that Bankruptcy Rule 9006(b)(1),
which contains the same Aexcusable neglect@ standard as Rule

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60(b)(1), grants a reprieve for out-of-time filings delayed by
Aneglect@. 123 L.Ed 2d at 85. In interpreting this provision,
the Court first turned to the ordinary meaning of Aneglect@,
which it said was to give little attention or respect to a matter
or to leave undone or unattended to, especially through careless-
ness. Id. The Court said that the word Aneglect@ therefore,
encompassed both simple, faultless omissions to act and, more
commonly, omissions caused by carelessness. Id. The Court
further held that absent sufficient indication to the contrary
courts assume that Congress intends words in its enactments to
carry their ordinary contemporary common meaning. Id. Conse-
quently, based on the plain meaning of neglect, the Court re-
jected an inflexible approach that would exclude every instance
of inadvertent or negligent omission. Id. at 89.

 With respect to the meaning of excusable neglect the Court

in Pioneer stated as follows:

         Because Congress has provided no other guide-
         posts for determining what sorts of neglect
         will be considered Aexcusable,@ we conclude
         that the determination is at bottom an equi-
         table one, taking account of all relevant
         circumstances surrounding the party=s omis-
         sion. These include,. . . the danger of
         prejudice to the debtor, the length of the
         delay and its potential impact on judicial
         proceedings, the reason for the delay, in-
         cluding whether it was within the reasonable
         control of the movant, and whether the movant
         acted in good faith.

Id. at 89.

 Many Courts of Appeals have acknowledged and followed the

test set forth in Pioneer. It has been explicitly recognized
that the decision in Pioneer represented a change from prior law

and adopted a new and more lenient interpretation. U.S. v.
Hooper, 9 F.3d 257 (2nd Cir. 1993); Matter of Christopher, 35
F.3d 232 (5th Cir. 1994); U.S. v. Clark, 51 F.3d 42 (5th Cir.
1995); Reynold v. Wagner, 55 F.3d 1426 (9th Cir. 1995); City of
Chanute, Kansas v. Williams Nat. Gas Co., 31 F.3d 1041 (10th Cir.
1994); Information Systems and Networks Corp. v. U.S., 994 F.2d
792 (Fed. Cir. 1993). See also, In Re SPR Corp., 45 F.3d 70 (4th
Cir. 1995). Although Pioneer was a case that arose under the
bankruptcy rules, it has been applied beyond the context of
bankruptcy to other situations where pertinent rules contain the

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same standard of Aexcusable neglect@. U.S. v. Hooper, supra at
259; U.S. v. Clark, supra at 44; Reynold v. Wagner, supra at
1429; Information Systems and Networks Corp. v. U.S., supra at
796.

 Applying the criteria of Pioneer, I find first that there

will be no prejudice to the Secretary if the operator is allowed
to proceed on the merits. There has been no allegation that the
delay which occurred here will hinder the Secretary in the
presentation of his case on the merits. In addition, a trial on
the merits is always favored over default. Information Systems
and Networks Corp. v. U.S., supra at 795. The fact that the
operator was not represented by counsel is another factor to be
taken into account. As described above, the operator=s engineer
testified how he treats citations, notices of proposed assess-
ments, and requests for hearing. I found him truthful and
credible. His methods were sensible and obviously undertaken in
good faith. That he was in the process of computerizing his
records and that there were a large number of cases going back to
1993 are relevant circumstances. Most importantly, this is the
only time this small operator has been out of time in requesting
a hearing. Nor do I believe reopening this case will have an
adverse impact on Commission proceedings given the circumstances
and the short delay involved. After balancing all the above
factors and bearing in mind the Supreme Court=s admonition that
the determination of what sorts of negligence are excusable is at
bottom an equitable one, I conclude that the operator=s late
filed hearing request should be allowed and the case reopened.

 This conclusion is also consistent with Commission prece-

dent. In vacating defaults and remanding cases for determination
whether reopening is warranted, the Commission has repeatedly
reminded its Judges that default is a harsh remedy. See, e.g.,
A.H. Smith Stone Company, 11 FMSHRC 796, 798 (May 1989). The
Commission itself has ordered a case reopened under Rule 60(b)(1)
where the operator did not timely file an appeal, relying upon
the fact that the operator was without benefit of counsel. C&B
Mining Company, 15 FMSHRC 2096, 2097 (Oct. 1993). In its remands
the Commission has considered the absence of counsel in the
forefront of relevant reasons that could justify reopening.
Kelley Trucking Company, 8 FMSHRC 1867, 1868 (Dec. 1986). See
also, CG&G Trucking, Inc., 15 FMSHRC 193 (Feb. 1993); Mustang
Fuels Corporation, 13 FMSHRC 1061, 1062 (July 1991). The Commis-
sion has also recognized that an operator proceeding without
counsel may be entitled to relief when serious personal problems
are responsible for the untimeliness. James D. McMillen, Em-
ployed by Shillelagh Mining Company, 13 FMSHRC 778, 779 (May
1991). The absence of bad faith is another factor which should
be taken into account. Kenneth Howard v. B & M Trucking,
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11 FMSHRC 499, 500 (April 1989). All the foregoing factors
support a reopening in the instant matter.

 It is clear that this case is an isolated instance where the

operator slipped up. As appears above, I have excused the
Secretary=s own late filing in the companion case. The grounds
here for operator relief are at the very least equally persuasive
as those advanced by the Secretary in the companion case and in
many other such cases where the Secretary seeks to have his late
filings allowed. Salt Lake County Road Department, 3 FMSHRC
1714; Rhone-Poulenc of Wyoming Company, 15 FMSHRC 2089 (Oct.
1993) aff=d, 57 F.3rd 982 (10th Cir. 1995); Roberts Brothers Coal
Company, Inc., 17 FMSHRC 1103 (June 1995); Lone Mountain Process-
ing, Inc., 17 FMSHRC 839 (May 1995); Ibold Inc., 17 FMSHRC 843
(May 1995); Long Branch Energy, 16 FMSHRC 2192 (Oct. 1994);
Southmountain Coal Company, Inc., 15 FMSHRC 2421 (Nov. 1993);
Power Operating Company Incorporated, 15 FMSHRC 931, (May 1993).

 The operator however, is cautioned that if in the future it

should be late in filing the equities might not be in its favor.
The operator is now on notice that some of its procedures,
including mailing, need improvement.

 The parties have filed post-hearing briefs and statements.

To the extent they are inconsistent with this decision, they are
rejected. The Solicitor appears unaware of Pioneer and the
decisions that follow it.

 In light of the foregoing, it is ORDERED that this case be

REOPENED.

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  It is further ORDERED that within 45 days of the receipt of

this order, the Solicitor file the penalty petition for this
case.

                             Paul Merlin
                             Chief Administrative Law Judge

Distribution: (Certified Mail)

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203

Richard D. Cohelia, Safety Director, R B Coal Co., Inc., Route 1,
Box 374, Evarts, KY 40828

Mr. David J. Partin, R B Coal Co., Inc., 8174 East Highway 72,
Pathfork, KY 40863

/gl

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