Dean Heyward Addison

Plain-English summary

Dean Heyward Addison asked the Commission to reopen an individual penalty assessment that had become final because he did not timely request a hearing. Addison said he misunderstood that the individual assessment would be combined with a separate assessment against his employer. The Commission could not evaluate the merits on the existing record and remanded the matter to a judge to decide whether he met the criteria for relief under Federal Rule of Civil Procedure 60(b). The order did not itself decide whether reopening was warranted.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. Part 2700; Fed. R. Civ. P. 60(b)
• Outcome: The request to reopen was remanded for a judge's determination under Rule 60(b).
• Key point: A request to reopen a final penalty assessment may be remanded for a fact-based determination when the Commission cannot evaluate the merits from the existing record.

Full text (FMSHRC public release)

[DOCID: f:addorder.wais]

DEAN HEYWARD ADDISON
April 17, 1997
SE 94-101-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                     April 17, 1997

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 97-101-M
: A.C. No. 09-01057-05513A
DEAN HEYWARD ADDISON :

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

                          ORDER

BY THE COMMISSION:

 This matter arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").
On March 3, 1997, the Commission received from
Dean Heyward Addison ("Addison") 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).
It has been administratively determined that the Secretary of
Labor does not oppose the motion for relief filed by Addison.

 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).

 Addison asserts that he did not timely submit his request

for a hearing ("Green Card") to the Department of Labor 's Mine
Safety and Health Administration ("MSHA") because he was not
totally familiar with the procedures for requesting a hearing
concerning the proposed individual penalty assessment and
understood, based on a conference call conducted with an
administrative law judge and the Secretary's counsel, that the
hearing on this assessment would be automatically combined with
the hearing on a separate assessment issued to D & H Quarry,
Inc., Addison's employer. Addison apparently submitted his
untimely request for a hearing on the individual assessment only
after learning that this understanding was not correct. Addison
requests the Commission to reopen this matter.

 The Commission has held that, in appropriate circumstances

and pursuant to Fed. R. Civ. P. 60(b), it possesses jurisdiction
to reopen uncontested assessments that have become final under
section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-
89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(September 1994).

 The Commission has 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
(September 1995). In accordance with Rule 60(b)(1), the
Commission has previously afforded parties relief from a final
order of the Commission on the basis of inadvertence or mistake.
See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996);
Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September
1996).

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

evaluate the merits of Addison's position. In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Addison has met the criteria for relief
under Rule 60(b). 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

                          Marc Lincoln Marks, Commissioner

                          James C. Riley, Commissioner

FOOTNOTES

 [1]:   Pursuant to section 113(c) of the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.