Chantilly Crushed Stone, Inc.

Plain-English summary

Chantilly Crushed Stone asked the Commission to reopen five penalty assessments that had become final orders after MSHA received its hearing request late. The company said it mailed the request within the 30-day period but that postal delays delayed delivery until after the deadline. The Commission found that Chantilly intended to contest the penalties and that its affidavit and green card supported its account of timely mailing. It reopened the assessments under Rule 60(b) and directed that the case proceed under the Mine Act and Commission rules.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The five final penalty assessments were reopened, and the case was allowed to proceed on the merits.
• Key point: A documented mailing delay may support reopening a final penalty assessment when the operator intended to contest it and the late filing was inadvertent or excusable.

Full text (FMSHRC public release)

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

                                     January 20, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. VA 2000-14-M
: A. C. No. 44-00024-05531
CHANTILLY CRUSHED STONE, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, 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. (1994) (“Mine Act”). On January 10, 2000, the Commission received from
Chantilly Crushed Stone, Inc. (“Chantilly”), a request to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). The Secretary of Labor does not oppose the request filed by Chantilly.

   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, Chantilly states that the proposed penalty assessments associated with

Citation Nos. 7725030, 7725031, 7725032, 7725034, and 7725036 became final orders of the
Commission due to delays at the U.S. Postal Service. Mot. at 1-2. It explains that the proposed
penalty assessments were received by its mine on October 15, 1999, and subsequently forwarded
to its safety director, Steven Herzberg, on October 22. Id. at 1. Chantilly submits that Herzberg
returned the request for a hearing (green card) by first class mail on November 15, 1999. Id. It
explains that, due to inexplicable mail delays, perhaps attributable to increased mail volume
during the holidays, the hearing request was not received by the Department of Labor’s Mine

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Safety and Health Administration (“MSHA”) until December 6, 1999. Id. at 1-2. Chantilly
states that, in a letter dated December 29, 1999, MSHA notified Chantilly of the final orders,
stating that the hearing request had been mailed by Chantilly on December 2, 1999, outside of the
30-day filing period. Id. at 2 n.3. Chantilly maintains that any delay in postmarking was outside
of its control. Id. Accordingly, Chantilly requests that the Commission reopen the final orders
on the basis of mistake or inadvertence pursuant to Fed. R. Civ. P. 60(b). Chantilly attached to
its request an affidavit by Herzberg, the December 29 MSHA letter, and a copy of the green card.

      We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess

jurisdiction to reopen uncontested assessments that have become final under section 105(a). Jim
Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); see also Rocky Hollow Coal Co.,
16 FMSHRC 1931, 1932 (Sept. 1994). We also have 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 previously have 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).

   The record indicates that Chantilly intended to contest the proposed penalties, and that it

may have timely filed its request for a hearing. The documents attached to Chantilly’s request
appear to be sufficiently reliable and support Chantilly’s allegations. See Ex. A (Aff. of Steven
Herzberg); Ex. C (green card signed by Herzberg and dated Nov. 15, 1999). In the circumstances
presented here, any late filing of Chantilly’s hearing request may be considered inadvertence or
excusable neglect within the meaning of Rule 60(b)(1).1 See Kinross DeLamar Mining Co., 18
FMSHRC 1590, 1591-92 (Sept. 1996) (granting operator’s motion to reopen when operator had
reasonable basis for believing that it timely mailed its hearing request and when any late filing
was due to unique mail service at mine).

   1
      In view of the fact that the Secretary does not oppose Chantilly’s motion to reopen this

matter for a hearing on the merits, Commissioners Marks and Verheggen would grant the
motion.

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    Accordingly, in the interest of justice, we reopen this penalty assessment that became a

final order with respect to Citation Nos. 7725030, 7725031, 7725032, 7725034, and 7725036.2
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




                                         Robert H. Beatty, Jr., Commissioner




   2
     Commissioner Beatty votes to grant Chantilly’s motion to reopen because it is

supported by an affidavit.

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Distribution

Adele L. Abrams, Esq.
Mark N. Savit, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037

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

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