Warrior Investment Co., Inc.

Plain-English summary

Warrior Investment Co., Inc. asked the Commission to reopen a $12,166 penalty assessment that had become a final order after the company said it never received the original assessment. The Commission could not determine from the record whether the company maintained the correct address with MSHA or whether MSHA mailed the assessment to the address the company provided. It remanded the matter to a judge to decide whether Warrior Investment qualified for relief under Rule 60(b). Two Commissioners dissented and would have reopened the matter directly before assigning it to a judge.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. § 41.12
• Outcome: The Commission remanded the matter for a judge to decide whether the penalty assessment should be reopened.
• Key point: A default penalty assessment may be reopened only after the record supports relief under Rule 60(b), including whether required address information was maintained.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                   September 29, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 99-220
: A.C. No. 01-03002-03515
WARRIOR INVESTMENT CO., INC. :

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 July 12, 1999, the Commission received from Warrior
Investment 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 Warrior Investment.

 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, Warrior Investment asserts that it did

not receive a copy of the original proposed penalty assessment.
Mot. Warrior Investment states that it was first informed of
the proposed penalty on June 28, 1999, when the Department of
Labor's Mine Safety and Health Administration ("MSHA") informed
it that the payment of the penalty assessment in the amount of
$12,166 was past due. Id. It is unclear from the record why
service upon Warrior Investment was unsuccessful, and why the
operator did not receive the proposed penalty assessment.
Warrior Investment requests the Commission to reopen this
matter.

 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., Harvey Trucking, 21
FMSHRC 567 (June 1999) (remanding where two notices sent to
operator at its address where returned undeliverable to MSHA
and operator claimed that it never received notice of the
proposed penalty assessment); Gary Klinefelter, 19 FMSHRC 827,
828 (May 1997) (remanding for determination of whether relief
from final order warranted where unclear why subject of section
110(c) investigation did not receive proposed penalty); Waste
Coal Management, Inc., 14 FMSHRC 423, 423-24 (Mar. 1992)
(remanding where default order sent by certified mail may not
have been received by operator). 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 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 Warrior Investment's position.[1] In
the interest of justice, we remand the matter for assignment
to a judge to determine whether Warrior Investment 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

                          James C. Riley, Commissioner

                          Robert H. Beatty, Jr., 
                            Commissioner

FOOTNOTES

 [1]:  Unlike  our  dissenting colleagues (slip op. at 4),

we find this case to be distinguishable from Roger Richardson,
20 FMSHRC 1259, 1260 (Nov. 1998). See Harvey Trucking, 21
FMSHRC 567, 569 n.1 (June 1999) (distinguishing Roger
Richardson). In Richardson, the Commission concluded that
an individual did not "receive" the Secretary's penalty
proposal within the meaning of section 105(a) of the Act
under circumstances in which the penalty proposal was sent
to Richardson's former address and Richardson was not
required to inform the Department of Labor, Mine Safety and
Health Administration ("MSHA"), of his change of address under
30 C.F.R. § 41.12. Id. at 1260. In contrast, Warrior
Investment is required to inform MSHA of any change of address
under section 41.12. The Commission has previously denied an
operator's request to reopen a final order where the operator
failed in that responsibility. Pit, 16 FMSHRC 2033, 2034
(Oct. 1994). Here, we are unable to evaluate from the
record whether Warrior Investment maintained its correct
address with MSHA or whether MSHA mailed the Secretary's
penalty proposal to the address submitted by Warrior
Investment pursuant to section 41.12.

 Commissioners Marks and Verheggen, dissenting:

 Warrior Investment Co. has alleged that it "did not

receive a copy of the original assessment for the violations."
Motion at 1. The Secretary has not disputed any of the facts
set forth in Warrior Investment's motion, and, in fact, does
not oppose the motion.

 We conclude that Warrior Investment did not "receive"

the Secretary's penalty proposal within the meaning of section
105(a) of the Mine Act and the Commission's Procedural Rules
before he received the final order. Roger Richardson, 20 FMSHRC
1259, 1260 (Nov. 1998). Under these circumstances, remanding
this matter to the judge for considering whether Warrior
Investment has met the criteria for relief under Rule 60(b)
is not necessary. We would reopen the matter, and remand it
for assignment to a judge so that the case could proceed
pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R., Part 2700.

                        Marc Lincoln Marks, Commissioner

                        Theodore F. Verheggen, Commissioner

Distribution

Jeffrey E. Jenkins. President
Warrior Investment Company, Inc.
P.O. Box 2888
Jasper, AL 35502

Tamara Nelson
Office of Civil Penalty Compliance
MSHA, U.S. Department of Labor
4015 Wilson Boulevard, 9th Floor
Arlington, VA 22203

Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006