Sproule Construction Co., Inc.

Plain-English summary

Sproule Construction asked the Commission to reopen an uncontested citation that had become a final order after the company did not file a timely hearing request. Sproule said it had been representing itself and was unfamiliar with Commission procedure, and it sought to consolidate the citation with another proceeding involving the company. The Commission found that the record supported relief under Rule 60(b), reopened the penalty assessment, and allowed the case to proceed under the Mine Act and Commission rules. Commissioner Beatty dissented, stating that the record should first have been sent to a judge to determine whether Sproule met the requirements for relief.

Decision snapshot

• Governing authority: 30 U.S.C. § 801 and 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment for Citation No. 7817699 was reopened, and the case was allowed to proceed under the Mine Act and Commission rules.
• Key point: The Commission granted Rule 60(b) relief where the pro se operator appeared unfamiliar with Commission procedure and the Secretary did not oppose reopening.

Full text (FMSHRC public release)

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

                                     January 19, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 2000-19-M
: A.C. No. 11-03024-05503
SPROULE CONSTRUCTION CO., INC. :
:

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

                                         ORDER

BY: Jordan, Chairman; Marks, Riley, and Verheggen, 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 September 13, 1999, the Commission received from
Sproule Construction Co., Inc. (“Sproule”) 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). The Secretary of Labor does not oppose the motion for relief filed by Sproule.1

   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).

    In its request, Sproule requests that the Commission reopen an uncontested citation

(Citation No. 7817699) that became a final order of the Commission by operation of section
105(a), and to consolidate it with a separate civil penalty proceeding involving the same operator,
LAKE 99-24-M. In that proceeding, Chief Administrative Law Judge Merlin issued an Order of

   1
      On October 21, 1999, the Commission received an opposition to Sproule’s request from

the Department of Labor’s Regional Solicitor’s Office in Chicago, Illinois. Attached to the
opposition were various documents including a copy of a certified receipt for the proposed
penalty associated with Citation No. 7817699. Reg. Solicitor’s Exs. C, D. On December 13,
1999, the Commission received a letter from the Appellate Litigation Division of the Solicitor’s
Office clarifying that the Secretary does not, in fact, oppose the motion to reopen.

Page 2

Default to Sproule for its failure to answer the petition for assessment of penalties for various
alleged violations of mandatory health or safety standards on March 15, 1999. On March 25,
1999, Sproule filed a Motion to Vacate any and all Defaults and for Leave to File an Answer to
Petition for Assessment. On April 26, 1999, the Commission issued an order vacating the
default, and remanding to the judge to determine whether relief from default was warranted. 21
FMSHRC 426, 428 (April 1999) (Chairman Jordan, dissenting). On June 10, 1999, Judge
Merlin issued an order on remand, vacating the default order and assigning the matter to
Administrative Law Judge Jacqueline Bulluck. 21 FMSHRC 691, 692 (June 1999) (ALJ). Judge
Merlin reasoned that the operator had been pro se up until the time that the default order was
issued and was unfamiliar with Commission procedure, and that the operator had contacted the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) when it first received
the petition and erroneously believed that such action resolved the matter. Id.

    Sproule states in its request that it subsequently filed its Answer to the Petition for

Assessment, including in the Answer its challenge to Citation No. 7817699. Mot. at 2. Sproule
submits that Judge Bulluck informed it that Citation No. 7817699 was not included in the
Petition for Assessment of Penalty for Docket No. LAKE 99-24-M, and that Sproule could not
include its challenge to that citation in its Answer. Id. Accordingly, Sproule requests that the
Commission consolidate Citation No. 7817699 with LAKE 99-24-M. Sproule attached to its
Motion to Join various documents filed and issued in LAKE 99-24-M.

    The separate proceeding, LAKE 99-24-M, has been settled. Although Sproule’s motion to

consolidate Citation No. 7817699 with LAKE 99-24-M is now moot, Sproule continues to
challenge the citation. Accordingly, Sproule’s motion to reopen Citation No. 7817699 requires
resolution.

   The proposed assessment for Citation No. 7817699 was received by Sproule on

November 20, 1998. Reg. Solicitor’s Exs. C, D. Sproule did not file a green card request for a
hearing with respect to the citation, and the proposed assessment became a final order of the
Commission on December 20, 1998.

    We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we

possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, e.g., Jim Walters Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993);
Rocky Hollow Coal Co., Inc., 16 FMSHRC 1931, 1932 (Sept. 1994). 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 Services, 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, mistake, or excusable neglect.
See National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19
FMSHRC 1613, 1614-15 (Oct. 1997).

                                    22 FMSHRC 13

Page 3

    Sproule offers no explanation in its motion for the reasons that it failed to file a green

card request for a hearing with respect to Citation No. 7817699. However, it appears from the
record and attachments to Sproule’s motion that Sproule was pro se at the time that it received
the penalty proposal and that it was unfamiliar with Commission procedure. See Reg. Solicitor’s
Exs. C, D (establishing that Sproule received Citation No. 7817699 on 11-20-98); Sproule’s Ex.
E at 1 (judge’s remand order, in which the judge found that, in November 1998, Sproule was pro
se and was not familiar with Commission procedure).

     In the interest of justice and in order to serve judicial economy, we grant Sproule’s

unopposed request for relief and reopen the penalty assessment that became a final order with
respect to Citation No. 7817699. See Turner v. New World Mining, Inc., 14 FMSHRC 76, 77
(Jan. 1992) (reopening final order and finding sufficient allegation that counsel misunderstood
Commission procedure); Peabody, 19 FMSHRC at 1614-15 (reopening final order when party’s
failure to submit hearing request was due to unfamiliarity with Commission procedure). The
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




                                         Theodore F. Verheggen, Commissioner




                                     22 FMSHRC 14

Page 4

Commissioner Beatty, dissenting:

    On the basis of the present record, I am unable to evaluate the merits of Sproule’s

position and would remand the matter for assignment to a judge to determine whether Sproule
has met the criteria for relief under Rule 60(b). See Dean Heywood Addison, 19 FMSHRC 681,
682-83 (Apr. 1997) (remanding to judge to determine whether asserted lack of familiarity with
Commission procedures met criteria for relief under Rule 60(b)); REB Enterprises, Inc., 18
FMSHRC 311, 312-13 (Mar. 1996) (remanding where failure to file answer was claimed to be
based upon lack of familiarity with Commission rules and procedures). I also note that Sproule
has failed to provide any explanation for its failure to timely file a green card or to offer any
affidavits to explain its position.

                                         Robert H. Beatty, Jr., Commissioner




                                     22 FMSHRC 15

Page 5

Distribution

Margaret Donnell, Esq.
Richard P. Reichstein, Ltd.
120 North Green St., Suite 601
Chicago, IL 60607

W. Christian Schumann, 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

                                22 FMSHRC 16