Collier Stone Company

Plain-English summary

Collier Stone asked to reopen penalty assessments that had become final after it failed to contest them within the Mine Act's 30-day period. The company said the penalties were excessive for its operations and that it was facing financial, operational, and emotional difficulties after the death of its co-founder and former quarry foreman. The Commission majority remanded the matter to a judge to determine whether Collier met the criteria for relief under Rule 60(b). A footnote states that Commissioners Marks and Verheggen would have granted the motion because the Secretary did not oppose reopening.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The request to reopen was remanded for a judge to determine whether Rule 60(b) relief was appropriate.
• Key point: The Commission left the merits of Collier's request unresolved and sent the matter for a factual determination.

Full text (FMSHRC public release)

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

              1730 K STREET NW, 6TH FLOOR

                WASHINGTON, D.C.  20006


                     April 4, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 2000-88-M
:
COLLIER STONE COMPANY :

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

                          ORDER

BY: Jordan, Chairman; Riley and Beatty, 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 February 23, 2000, the Commission received from Collier Stone
Company ("Collier") a request to reopen penalty assessments that
had become final orders 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 Collier.

 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, Collier asserts that the proposed penalties

are excessive and unreasonable in relation to the size and
profitability of its operations, and the nature of the
violations. Mot. It also states that it is experiencing
financial, operational, and emotional difficulties due to the
recent death of its co-founder and former quarry foreman, and
that the proposed penalties would have a severe financial impact
on its operations. Id. Accordingly, Collier requests an
opportunity to contest the proposed penalty assessments. Id.

 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, eg., Kenamerican Resources, Inc., 20 FMSHRC
199, 201 (March 1998); Jim Walter Resources, Inc., 15 FMSHRC 782,
786-89 (May 1993). 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 Preservation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)(1), we
previously have afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See National
Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal
Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining Co.,
19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (Sept. 1996).

 On the basis of the present record, we are unable to

evaluate the merits of Collier's position.[1] In the interest
of justice, we remand the matter for assignment to a judge to
determine whether Collier has met the criteria for relief under
Rule 60(b). See Tigue Constr. Co., 21 FMSHRC 9 (Jan. 1999)
(remanding where the operator's vice-president, allegedly
responsible for handling MSHA-related matters, was hospitalized
for quadruple bypass surgery); Wolf Creek Sand & Gravel, 21
FMSHRC 1 (Jan. 1999) (remanding where the responsible employee
was out of the office for an extensive period of time due to her
husband's hospitalization). 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

                          James C. Riley, Commissioner

                          Robert H. Beatty, Jr., Commissioner

Distribution

Patrick F. McShane, President
Collier Stone Company
80 Noblestown Road
Carnegie, PA 15106

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

FOOTNOTES

 [1]  In view of the fact that the Secretary does not oppose

Collier's motion to reopen this matter for a hearing on the
merits, Commissioners Marks and Verheggen conclude that the
motion should be granted.