City Transfer of Kent, Incorporated

Plain-English summary

City Transfer of Kent asked the Commission to reopen four penalty assessments that had become final orders after the operator allegedly sent letters contesting the citations. The operator said it did not receive clear appeal instructions and did not receive a response to its letters. The Commission found that the record was not sufficient to evaluate the request and remanded the matter to a judge to determine whether City Transfer met the requirements for relief under Federal Rule of Civil Procedure 60(b). Two commissioners would have granted the request because the Secretary did not oppose it.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The matter was remanded for a judge to determine whether relief from the final penalty assessments was appropriate under Rule 60(b).
• Key point: A request to reopen uncontested penalty assessments requires a record sufficient to evaluate the operator's claimed basis for relief.

Full text (FMSHRC public release)

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

                                       June 21, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 2000-311-M
: through WEST 2000-314-M
CITY TRANSFER OF KENT, :
INCORPORATED :

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 April 21, 2000, the Commission received from City
Transfer of Kent, Inc. (“City Transfer”) 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 motion for relief filed by City Transfer.

   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, City Transfer, which is represented by Environmental Compliance &

Remediation, Inc., states that when it received the citations, “there was no formal statement from
MSHA on the appeals process,” contrary to the past practice by the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) of including “a post card with citations that could
be sent back to MSHA requesting an informal meeting.” Letter dated April 12, 2000. It also
contends that it previously mailed letters dated August 4 and 18, 1999 to MSHA contesting the
citations in these cases because they were unjust and unsubstantiated, and requesting a hearing.
Id. and attachs. It alleges that it never received a response to its letters. Letter dated April 12,
2000. City Transfer attached to its request copies of several letters, dated May 24, August 4, and
August 18, 1999, which it allegedly sent to MSHA’s regional office in Bellevue, Washington

                                     22 FMSHRC 701

Page 2

contesting the citations; a return receipt for a mailing to MSHA’s regional office delivered on
November 7, 1999; and a letter dated October 29, 1999, which it allegedly sent to MSHA’s Civil
Penalty Compliance Office indicating that it sent the August 4 and 18 letters and inquiring into
the status of its hearing request. Attachs. Accordingly, City Transfer requests a hearing on
Citation Nos. “796948 — 796979.” Letter dated April 12, 2000.

    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, eg., Kenamerican Resources, Inc., 20 FMSHRC 199, 201 (Mar. 1998); Jim
Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). 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 Preservation 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); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996).

                                   22 FMSHRC 702

Page 3

     On the basis of the present record, we are unable to evaluate the merits of City Transfer’s

position.1 In the interest of justice, we remand the matter for assignment to a judge to determine
whether City Transfer has met the criteria for relief under Rule 60(b). See Bauman Landscape,
Inc., 22 FMSHRC 289, 289-90 (Mar. 2000) (remanding to a judge where the operator claimed
that it never received the proposed penalty assessment and owner did not sign the return receipt
without submitting any supporting documentation); Warrior Investment Co., 21 FMSHRC 971,
973 (Sept. 1999) (remanding where operator claimed that it did not receive proposed penalty
assessment and record did not clearly indicate why service was unsuccessful). 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




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

this matter for a hearing on the merits, Commissioners Marks and Verheggen conclude that the
motion should be granted.

                                     22 FMSHRC 703

Page 4

Distribution

Michael Breysse, NW Regional Supervisor
City Transfer of Kent, Inc.
140 Rainier Ave., South, #7
Renton, WA 98057

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

                                22 FMSHRC 704