Joe Estis, employed by Chemical Lime Company of Alabama, LLC

Plain-English summary

Joe Estis and Chemical Lime Company of Alabama asked the Commission to reopen an individual penalty assessment that became final after Estis did not timely contest it. Counsel stated that MSHA sent the assessment to an address where Estis no longer lived, and the Secretary did not oppose reopening. An administrative law judge had already approved a settlement and dismissed all existing or potential section 110(c) investigations related to the underlying docket. The Commission concluded that the judge had specifically and properly dismissed the proceeding against Estis, so it dismissed the reopening request as moot.

Decision snapshot

• Governing authority: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.1(b), 2700.26, and 2700.27
• Outcome: The Commission dismissed the request to reopen as moot because the individual section 110(c) proceeding had already been dismissed.
• Key point: Reopening was unnecessary where the underlying settlement order already dismissed the individual penalty proceeding.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

May 21, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

v.

JOE ESTIS, employed by CHEMICAL 

LIME COMPANY OF ALABAMA, LLC

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Docket No. SE 2010-249-M

A.C. No. 01-00003-270566A

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 September 19, 2012, the Commission received a
motion seeking to reopen a penalty
assessment under section 110(c) of
the Mine Act, 30 U.S.C. § 820(c), that had become a final order of
the Commission. The motion was filed by counsel for Joe Estis and Chemical Lime
Company of Alabama, LLC (“Chemical Lime”).

Under
the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to
notify the Secretary of Labor that he or she wishes to contest the penalty. 29
C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 29 C.F.R. §
2700.27.

We
have held, however, that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders. Jim Walter
Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating
requests to reopen final section 105(a) 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”); JWR, 15
FMSHRC at 787. We
have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17
FMSHRC 1529, 1530 (Sept. 1995).

Counsel
asserts that Mr. Estis left his employment with Chemical Lime on or about
September 11, 2009. Counsel further states that MSHA mailed the proposed
assessment, dated October 25, 2011, to an address where Mr. Estis no longer
resided. As a result, Mr. Estis apparently did not contest the proposed penalty
in a timely manner.

Administrative
Law Judge Jeffrey Tureck issued a Decision Approving Settlement of Docket No. SE
2010-249-M on May 17, 2012. Judge Tureck also ordered that “all existing or
potential investigations under Section 110(c) related to Docket No. SE
2010-249-M be dismissed.” The purpose of the motion to reopen is to confirm that
the penalty proceeding involving Mr. Estis was specifically dismissed. The
Secretary does not oppose the request to reopen and confirms that the settlement
agreement contemplated dismissal of the section 110(c) proceeding
against Mr. Estis.

Having
reviewed this request and the
Secretary’s response, we find that reopening this matter is unnecessary as the
judge specifically and properly dismissed this section 110(c) proceeding
against Mr. Estis. Accordingly, the request to reopen
is dismissed as moot.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/Michael G. Young

Michael
G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Distribution:

Steven Baker, Regional Safety Manager

Lhoist North America

2885 Highway 31

Calera, AL 35040

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

Administrative Law Judge Jeffrey Tureck

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004