Eclipse C Corporation

Plain-English summary

Eclipse C Corporation asked to reopen two penalty assessments after mistakenly believing that a hearing request for another docket also covered them. The unrepresented company said all of the tickets had been issued together and asked that the matters be consolidated. The Secretary did not oppose relief. The Commission remanded the matter for a judge to determine whether Eclipse met the Rule 60(b) requirements, without deciding the underlying penalties.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.60(b)
• Outcome: The two final assessments were remanded for a judge to determine whether they should be reopened under Rule 60(b).
• Key point: A mistaken belief that one hearing request covered related assessments may support fact-finding on relief from default.

Full text (FMSHRC public release)

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

                                     February 7, 2001

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 2000-617-M
: WEST 2000-618-M
ECLIPSE C CORPORATION :

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

                                          ORDER

BY: Jordan, Chairman; Beatty, Commissioner

   This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) (“Mine Act”). On September 8, 2000, the Commission received from Eclipse
C Corporation (“Eclipse”) 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 Eclipse.

   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 motion, Eclipse, which is unrepresented by counsel, asserts that it filed a hearing

request to contest the proposed penalties, one which is the subject of Docket No. WEST 2000-468-M,
and mistakenly believed that its request applied also to the proposed assessments which are the
subjects of Docket Nos. WEST 2000-617-M and 2000-618-M. Mot. Eclipse explains that “all the
tickets were given at one time.” Id. It requests that the proposed assessments for all three dockets

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be consolidated into one proceeding. Id. In addition, Eclipse requests that the Commission reopen
the final orders. Id.

    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 Res., Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994). 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 previously
have afforded a party relief from a final order of the Commission on the basis of inadvertence or
mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June
1997).

    On the basis of the present record, we are unable to evaluate the merits of Eclipse’s position.

In the interest of justice, we remand the matter for assignment to a judge to determine whether
Eclipse has met the criteria for relief under Rule 60(b). See, e.g., Ogden Constructors, Inc., 22
FMSHRC 5, 7 (Jan. 2000) (remanding to a judge where the operator failed to timely submit a
hearing request due to a mistaken belief that no action was necessary because the citation was the
subject of an ongoing MSHA investigation); M & Y Services, Inc., 19 FMSHRC 670, 671-72 (Apr.
1997) (remanding to a judge where the operator failed to timely submit a hearing request because it
allegedly did not receive assistance regarding the proper contest procedure until the deadline for
filing had passed); Rivco Dredging Corp., 10 FMSHRC 624, 625 (May 1988) (remanding to the
judge where due to a misunderstanding of Commission procedure, the operator filed a notice of
contest of the citation, but failed to separately file a hearing request to contest the proposed
assessment). 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




                                          Robert H. Beatty, Jr., Commissioner




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Commissioners Riley and Verheggen, concurring in result:

    We would grant the operator’s request for relief here, because the Secretary does not oppose

and the operator has offered a sufficient explanation for its failure to timely respond. However, in
order to avoid the effect of an evenly divided decision, we join in remanding the case to allow the
judge to consider whether the operator has met the criteria for relief under Commission Procedural
Rule 60(b), 29 C.F.R. § 2700.60(b). See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990),
aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing that the effect of a split
Commission decision is to leave standing disposition from which appeal has been sought).

                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




                                     23 FMSHRC 136

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Distribution

Jonathan G. Shotwell, President
Eclipse C Corporation
P.O. Box 2081
Port Angeles, WA 98362

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

                                 23 FMSHRC 137