Ogden Constructors, Inc.

Plain-English summary

Ogden Constructors asked the Commission to reopen a penalty assessment after it mistakenly believed that a crushing plant was outside MSHA’s jurisdiction. The company said its Utah office had closed, personnel had relocated, and it could not locate the original assessment by the time it learned the plant was subject to MSHA. The Commission could not evaluate the merits from the existing record and remanded the matter to a judge to determine whether Ogden qualified for relief under Rule 60(b). If relief is granted, the case will proceed under the Mine Act and Commission rules.

Decision snapshot

• Governing authority: 30 U.S.C. § 801 and 30 U.S.C. § 815(a)
• Outcome: The matter was remanded for a judge to determine whether the final penalty order should be reopened under Rule 60(b).
• Key point: A mistaken jurisdictional assumption and disrupted mail routing may warrant a factual determination on relief from a final penalty order.

Full text (FMSHRC public release)

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

                                     January 12, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 2000-76-M
: A.C. No. 42-02242-05501
OGDEN CONSTRUCTORS, 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 December 10, 1999, the Commission received from
Ogden Constructors, Inc. (“Ogden”) 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).
The Secretary of Labor does not oppose the motion for relief filed by Ogden.

   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, Ogden asserts that its failure to file a hearing request to contest the

proposed penalty for an alleged violation of a mandatory standard was due to its mistaken belief
that the cited crushing plant was not subject to the jurisdiction of the Department of Labor’s
Mine Safety and Health Administration (“MSHA”). Mot. at. 1. It explained that its Utah office
closed earlier in the year and that it was led to believe by project sponsors that the new location
and “purpose” of the crushing plant would place it under the jurisdiction of the Occupational
Safety and Health Administration, and the Army Corps of Engineers, rather than MSHA. Id.
Ogden maintains that, after consulting with MSHA, it subsequently determined that the plant was
subject to MSHA jurisdiction, but that by then the time for contesting the citation had expired.
Id. It further states that personnel from the Utah office were relocated throughout the country,

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making it difficult to route correspondence to the proper person. Id. Ogden submits that the
person assigned with the overall responsibility for health and safety is no longer employed by
Ogden, and that it has not been successful in locating the original proposed assessment. Id. at 2.
Accordingly, it requests that the Commission reopen the final order. Id.

    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., Jim Walters Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993);
Rocky Hollow Coal Co., Inc., 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 Services, 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, mistake, or excusable neglect.
See National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19
FMSHRC 1613, 1614-15 (Oct. 1997).

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

position.1 In the interest of justice, we remand the matter for assignment to a judge to determine
whether Ogden has met the criteria for relief under Rule 60(b). See M&Y Services, Inc., 19
FMSHRC 670, 671-72 (April 1997) (remanding when proposed penalty became final order
because operator was unfamiliar with Commission procedure). 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, Commissioner




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

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

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Distribution

Conrad Weidenkeller
Regional Safety Manager
Ogden Constructors
2725 Jefferson St., Suite 12
Carlsbad, CA 92008

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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