Del Rio, Inc. (Commission decision, March 12, 1997)

Plain-English summary

Del Rio, Inc. mailed its request to contest an MSHA penalty one week late after the form was misfiled in its accounts-payable records. The penalty had already become a final Commission order because the company did not notify the Secretary within 30 days. The Commission remanded the matter to a judge to decide whether the company met the requirements for relief from the final order under Rule 60(b), after noting that the Secretary did not oppose the request.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(a) and 823(c); 29 C.F.R. § 2700
• Outcome: The request to reopen the final penalty assessment was remanded for a judge to determine whether Rule 60(b) relief was appropriate.
• Key point: The Commission may allow a late contest to proceed when the operator shows adequate cause for missing the 30-day deadline.

Full text (FMSHRC public release)

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

March 12, 1997

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
:
v. : Docket No. KENT 97-138
: A.C. No. 15-17432-03541
DEL RIO, INC.
:

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq. (1994) (AMine Act@). On February 24, 1997, the Commission received from Del Rio, Inc. (ADel Rio@) a request to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. ' 815(a). It has been administratively determined that the Secretary of Labor does not oppose the motion for relief filed by Del Rio.

Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the Secretary of Labor'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).

Del Rio states that it mailed its request for a hearing (AGreen Card@) to the Department of Labor's Mine Safety and Health Administration (AMSHA@) one week late because the card was

1
Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 823(c), this panel of three Commissioners has been designated to exercise the powers of the Commission.

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inadvertently misfiled in its accounts payable file and the error was not discovered until after the expiration of the 30-day period for submitting the Green Card. Del Rio requests the Commission to reopen this matter and accept its late-filed Green Card.

The Commission has held that, in appropriate circumstances and pursuant to Fed. R. Civ.
P. 60(b), it possesses jurisdiction to reopen uncontested assessments that have become final under section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994).

The Commission has 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 Services, Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b)(1), the Commission has previously afforded a party relief from a final order of the Commission on the basis of inadvertence or mistake. See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September 1996).

On the basis of the present record, we are unable to evaluate the merits of Del Rio=s position. In the interest of justice, we remand the matter for assignment to a judge to determine whether Del Rio has met the criteria for relief under Rule 60(b). If the judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission=s Procedural Rules, 29 C.F.R. Part 2700.

Mary Lu Jordan, Chairman

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

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