Beaver Excavating Company

Plain-English summary

Beaver Excavating asked to reopen an approved settlement because it believed the written decision did not match the parties' agreement. Beaver said the Secretary had agreed to reduce the special-assessment classification based on unwarrantable failure, but the settlement order did not reflect that term. The Secretary did not oppose reopening so the claim could be adjudicated, while expressly declining to agree that Beaver's account was correct. Although Beaver had already paid the ordered amount, the Commission vacated the settlement decision and remanded the dispute.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 823(d); 29 C.F.R. §§ 2700.1(b) and 2700.70(a)
• Outcome: The settlement decision was vacated, and the case was remanded to determine the parties' actual agreement.
• Key point: A final settlement order may be reopened when an operator plausibly claims that the written disposition omitted a material agreed term.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                            

September 12, 2012

SECRETARY OF LABOR,                                

MINE SAFETY AND HEALTH                       

ADMINISTRATION (MSHA)

v.

BEAVER EXCAVATING COMPANY 

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Docket No. LAKE 2011-163-M

A.C. No. 33-00528-236600 X68

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On January 31, 2012, the Commission received from Beaver
Excavating Company (“Beaver”) a motion seeking to reopen a settlement agreement and relieve
it from the decision approving settlement entered against it.

On June 8, 2011, Chief Administrative Law Judge Lesnick issued a Decision Approving
Settlement (“Decision”) in response to the Conference and Litigation Representative’s (“CLR”)
motion to approve the proposed settlement.

Beaver asserts that the Decision does not accurately represent the settlement upon which
the parties had agreed. In particular, Beaver believes that the Secretary of Labor accepted
Beaver’s proposal to downgrade the level of the special assessment based on unwarrantable
failure, but that the settlement order did not reflect this.

The Secretary does not oppose the request to reopen for the purpose of adjudicating the
operator’s claim, but notes that her non-opposition should not be construed as agreement with the
operator’s claim. The Secretary also notes that the Mine Safety and Health Administration
(“MSHA”) received payment for the amount Beaver was ordered to pay in the Decision, by
check dated September 23, 2011.

Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final
decision of the Commission.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782,
786-89 (May 1993).

Having reviewed Beaver’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Decision. Accordingly, this case is remanded to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Keith Ashmus, Esq.

Julie L. Pietrzen, Esq.

Frantz Ward, LLP

2500 Key Ctr.

127 Public Square

Cleveland, OH 44114-1230

[email protected]

[email protected] 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021