Eighty Four Mining Company

Plain-English summary

Eighty Four Mining Company asked to contest three proposed penalties after the 30-day deadline had passed. The company said it had marked the penalties for contest on the green card but that MSHA did not receive the card, while it paid the other proposed penalties. The Commission found that the copy of the card and the company's payment supported its intent to contest and treated the missed filing as inadvertence or mistake under Rule 60(b)(1). It reopened the three penalty assessments so the case could proceed under the Mine Act and Commission rules.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: Relief was granted and the penalty assessments for Citation Nos. 3658055, 3658059, and 3658060 were reopened.
• Key point: A documented filing mistake may justify reopening penalty assessments that became final by operation of the Mine Act.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                     August 16, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 99-218
: A.C. No. 36-00958-04210
EIGHTY FOUR MINING COMPANY :

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
Commissioners[1]

                          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 June 7, 1999, the Commission received from Eighty
Four Mining Company ("Eighty Four") a Motion for Leave to
File a Notice of Contest of Proposed Penalty Assessment out
of time for three 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). It has been administratively
determined that the Secretary of Labor does not oppose the
motion for relief filed by Eighty Four.

 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, Eighty Four contends that it timely filed

a hearing request to contest the proposed penalties related to
Citation Nos. 3658055, 3658059, and 3658060. Mot. at 1-2.
Eighty Four states that it received the proposed penalty
assessments for nineteen citations on March 1, 1999. Id. at 1.
The operator maintains that it indicated on the proposed
assessment ("green card") that it mailed to the Department of
Labor's Mine Safety and Health Administration ("MSHA") that it
intended to contest the penalties related to Citation Nos.
3658055, 3658059, and 3658060, which totaled $770.00, and that
it intended to pay the penalties related to the remainder of
the citations, which totaled $2652.00. Id. at 1-2. Eighty
Four paid the $2652.00 in proposed penalties related to the
citations it did not contest. Id. at 1. The operator
subsequently received a notice from MSHA stating that $770.00
in civil penalties was overdue and assessing additional charges
of $10.47. Id. at 2. Eighty Four then telephoned MSHA's Office
of Assessments, which advised the operator that it had not
received the green card contesting the three subject proposed
penalties. Id. By that time, however, the thirty-day deadline
for submission of the request had already passed. Eighty Four
believes that it timely mailed the green card and cannot
explain why MSHA did not receive it. Id. at 2. Attached to
the motion is a copy of the green card indicating the
operator's intent to contest the subject proposed civil
penalties, a Notice of Contest of Proposed Penalty
Assessment for Citation Nos. 3658055, 3658059, and 3658060,
and copies of the citations here at issue.

 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., Essayons, Inc.,
20 FMSHRC 786, 788 (Aug. 1998) (remanding final order when
operator misplaced proposed penalty notification); Del Rio,
Inc., 19 FMSHRC 467, 468 (Mar. 1997) (remanding final order
when operator inadvertently misfiled hearing request card);
RB Coal Co., 17 FMSHRC 1110, 1111 (July 1995) (remanding final
order when operator misplaced hearing request card). 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 Servs., 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 or mistake. See Western Aggregates,
Inc., 20 FMSHRC 745, 746-47 (July 1998) (remanding request to
reopen penalty assessment where operator inadvertently sent
request for hearing to MSHA's payment lockbox); Drummond
Co., 17 FMSHRC 883, 884 (June 1995) (remanding request to
reopen penalty assessment after hearing request was timely
submitted but erroneously indicated that the operator did not
wish to contest certain proposed penalties).

 Here, the green card copy attached to the motion shows

that the operator wrote an "x" next to the listings for
Citation Nos. 3658055, 3658059, and 3658060. Handwriting on
the bottom of the green card copy states "Appeal $777.00" -
the total amount for the proposed penalties for Citation
Nos. 3658055, 3658059, and 3658060, and "Pay $2652.00." It
is uncontroverted that MSHA received payment of $2652.00, an
amount equal to the total civil penalties proposed by the
Secretary less $777.00. While it is not clear why MSHA did
not receive the green card, the record demonstrates the
operator's intent to contest the subject proposed penalties.
Eighty Four's failure to submit the green card can be
reasonably found to qualify as "inadvertence" or "mistake"
within the meaning of Rule 60(b)(1). See Kenamerican
Resources, Inc., 20 FMSHRC 199, 200-01 (Mar. 1998) (reopening
proceedings when green card was not timely filed due to
operator's internal processing error).

 Accordingly, the interest of justice, we grant Eighty

Four's unopposed request for relief and reopen the penalty
assessments that became final orders with respect to Citation
Nos. 3658055, 3658059, and 3658060. 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

                          Theodore F. Verheggen, 
                            Commissioner

Distribution

Elizabeth Chamberlin, Esq.
Consol Inc.
1800 Washington Road
Pittsburgh, PA 15241

Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 516
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20005

FOOTNOTES

 [1]:   Commissioner  Beatty recused himself from this

matter and took no part in its consideration.