Akzo Salt, Inc.

Plain-English summary

Akzo Salt, Inc. asked the Commission to reopen uncontested civil penalty assessments that it had already paid. The operator argued that the Secretary had improperly increased the penalties under an interim excessive-history program that the Commission later held could be given no legal weight or effect. The Commission held that it could reopen final orders in appropriate circumstances, including orders involving paid uncontested penalties, but found that Akzo had not met the requirements for relief under Federal Rule of Civil Procedure 60(b) or principles of equity. The Commission denied Akzo's motion to reopen and dismissed the proceeding.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(a)
• Outcome: The Commission denied the motion to reopen and dismissed the proceeding.
• Key point: A mine operator that paid uncontested penalties must satisfy the applicable Rule 60(b) or equitable-relief requirements to reopen the final orders.

Full text (FMSHRC public release)

CCASE:
AKZO SALT, INC. V. SOL (MSHA)
DDATE:
19930629
TTEXT:

                              June 29, 1993

AKZO SALT, INC. :
:
v. : Docket No. SPECIAL 92-09
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

                                 DECISION

BY THE COMMISSION:

  In this proceeding arising under the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. 801 et seq. (1988)("Mine Act" or "Act"), Akzo Salt, Inc.
("Akzo") filed with the Commission a Notice of Contest and Motion for Partial
Relief from Final Order, seeking to reopen certain uncontested civil penalty
assessments in which Akzo had paid in full penalties proposed by the Secretary
of Labor. As the basis for its motion, Akzo cites Rule 60(b), Federal Rules
of Civil Procedure ("Rule 60(b)"), and principles of equity.

  Akzo contends that the penalties in dispute were invalidly augmented on

the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Akzo seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.

  This case is one of 19 special proceedings in which notices of contest

and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources, Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Akzo's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny Akzo's motion to reopen and we
dismiss this proceeding.

  In JWR, we held that a final order of the Commission may be reopened by

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.

  Akzo has invoked Rule 60(b)(3), alleging misrepresentation by the

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.

  The Commission also concluded that, although Rule 60(b)(6) provides for

relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. Id.

  Accordingly, for the reasons expressed in JWR, we conclude that Akzo

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.

  As in JWR, we urge the Secretary to evaluate further the legality and

feasibility of providing the refunds sought by Akzo. See 15 FMSHRC at 791-92.

                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner


                                Joyce A. Doyle, Commissioner


                                L. Clair Nelson, Commissioner