Ogden Constructors, Inc.

Plain-English summary

Ogden Constructors asked the Commission to reopen a penalty assessment after it mistakenly believed that no contest filing was needed while MSHA investigated the citation. The company said it received MSHA’s explanation only after the contest deadline expired. The Commission could not decide 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 assessment should be reopened under Rule 60(b).
• Key point: A mistaken belief that a separate MSHA investigation satisfied the contest requirement may support reopening, but the record must first be evaluated by a judge.

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 2000-77-M
: A.C. No. 04-05373-05501
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 Citation No. 7966771 was due to its mistaken belief that no action was
required because the citation was the subject of an ongoing investigation by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”). Mot. at 1. It explains that shortly
after receiving the penalty proposal associated with the citation on August 18, 1999, it was
contacted by an MSHA Special Investigator, who informed Ogden that he would be investigating
the citation. Id. Ogden states that it believed that the actions against the company and any
individuals were being investigated at the same time and that it requested, by letter dated
September 7, that MSHA delay final disposition of the case pending the results of the
investigation. Id. It submits that it received a letter dated October 15, 1999, from MSHA stating

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that the enforcement actions against the company and individuals had been investigated
separately and that penalties had been proposed separately. Id. Ogden states that it received the
letter after the time for contesting the citation had expired. Id. Accordingly, it requests that the
Commission reopen the case so that it may contest Citation No. 7966771.1 Id. Ogden attached
to its letter the October 15 letter from MSHA.

    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).

   1
     Ogden mistakenly identified the case involving Citation No. 7966771 as identified by

A.C. No. 42-02242-05501, rather than A.C. No. 04-05373-05501.

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

position.2 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 Dean Heyward Addison, 19
FMSHRC 681, 682-83 (April 1997) (remanding when proposed penalty became final because
that individual mistakenly believed that a hearing on the individual penalty would be
automatically conducted with the hearing on the penalty proposed against the operator); M&Y
Services, Inc., 19 FMSHRC 670, 671 (April 1997) (remanding when proposed penalty became
final because operator was unfamiliar with the procedures for requesting hearing); see also Rivco
Dredging Corp., 10 FMSHRC 624, 625 (May 1988) (remanding when operator filed notice of
contest but was unaware that contest of proposed penalties was required). 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




   2
     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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