Limerock Industries, Inc.

Plain-English summary

Limerock Industries failed to timely contest a $340 proposed penalty associated with a citation from an MSHA inspection. The company said it believed the citation would automatically be consolidated with other citations that it had already contested, and MSHA did not oppose reopening the assessment. The Commission found that the missed deadline could qualify as inadvertence or mistake, reopened the final penalty assessment, and remanded the case for assignment to a judge to decide Limerock’s request to consolidate it with other cases. The order did not decide the underlying citation.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. Part 2700 and § 2700.1(b).
• Outcome: The final $340 penalty assessment was reopened, and the matter was remanded for assignment to a judge.
• Key point: The Commission may provide relief from a final penalty order when a documented misunderstanding reasonably explains the failure to file a timely contest.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                       July 28, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 99-153-M
: A.C. No. 08-00008-05572
LIMEROCK INDUSTRIES, INC.. :

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

                                          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 April 16, 1999, the Commission received a motion from
Limerock Industries, Inc. (“Limerock”) 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), and to
consolidate the citation with other pending cases. Limerock had failed to timely submit a
request for hearing to contest the proposed penalty assessments and pursuant to section 105(a),
this proposed penalty assessment of $340 became a final order of the Commission thirty days
after its receipt by Limerock. On June 10, 1999, the Secretary of Labor filed a response to
Limerock’s motion, stating that she does not oppose the motion to reopen this case.

    In its motion, Limerock contends that its failure to timely file a hearing request to contest

the proposed penalty was due to its mistaken belief that the citation at issue would automatically
be consolidated with pending cases involving citations from the same inspection giving rise to
the subject citation. Mot. at 2. Limerock explains that the proposed penalty was related to two
sets of citations issued to it pursuant to section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1). Id. at
1-2. Limerock states that it timely filed notices of contests of the proposed penalty assessments
related to these two sets of citations in October and November 1998. Id. at 4-5. It contends that
in January 1999 it received another citation resulting from the same inspection, but that pursuant
to discussions with government counsel, it believed that it would automatically be consolidated

                                     21 FMSHRC 707

with the other outstanding citations. Id. at 5. Consequently, it did not file a notice of contest of
the subject proposed penalty assessment. Limerock submitted an affidavit from its safety
manager, stating that he did not file a notice contesting the subject proposed penalty because of
his good faith belief that the letters he had sent contesting the other proposed penalties covered
this one as well. Aff. of Gene Pollock.

    The Commission has found that, in appropriate circumstances and pursuant to Fed. R.

Civ. P. 60(b), it possesses jurisdiction to reopen uncontested assessments that have become final
by operation of section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-90 (May
1993). The Commission has 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. Coal
Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule
60(b)(1), the Commission has previously afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See Peabody Coal Co., 19 FMSHRC 1613,
1614-15 (Oct. 1997); General Chem. Corp., 18 FMSHRC 704, 705 (May 1996).

    Here, the record indicates that Limerock intended to contest the penalty associated with

Citation No. 04359421 and that, but for its reliance on MSHA’s statements that all citations
would be consolidated, it would have timely submitted the hearing request and contested the
proposed penalty assessment. Under these circumstances, Limerock’s failure to timely file a
hearing request reasonably may be found to qualify as “inadvertence” or “mistake” within the
meaning of Rule 60(b)(1). See National Lime & Stone, Inc., 20 FMSHRC 923 (Sept. 1998)
(reopening matter when operator’s late filing of hearing request was caused by a mutual
misunderstanding between counsel for the operator and counsel for MSHA as to need to
challenge penalty assessment prior to judge’s approval of parties’ settlement); Eagle Energy,
Inc., 21 FMSHRC 13, 15 (Jan. 1999) (granting unopposed request for relief from order that
became final due to a misunderstanding between the operator and an MSHA representative).

                                     21 FMSHRC 708



   Accordingly, in the interest of justice, we grant Limerock’s unopposed request for relief

and reopen the penalty assessment that became a final order with respect to Citation No.
04359421. We remand the matter for assignment to a judge, who shall rule on Limerock’s
request to consolidate. The 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




                                    21 FMSHRC 709

Commissioner Beatty, dissenting:

    On the basis of the present record, I am unable to evaluate the merits of Limerock’s

position and would remand the matter for assignment to a judge to determine whether Limerock
has met the criteria for relief under Rule 60(b). See Randy Coal Co., 12 FMSHRC 1760, 1761
(Sept. 1990) (remanding final order where operator’s submission reflected possible
misunderstanding regarding procedures in civil penalty proceeding).

                                              Robert H. Beatty, Jr., Commissioner




                                  21 FMSHRC 710

Distribution

Michael Grogan, Esq.
Coffman, Coleman, Andrews & Grogan
P.O. Box 40089
Jacksonville, FL 32203

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 Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

                               21 FMSHRC 711