Bauman Landscape, Inc.

Plain-English summary

Bauman Landscape asked to reopen a penalty assessment that had become a final Commission order after the company did not timely contest it. The owner said he never received the proposed assessment, did not know about the penalties, and had already paid penalties for the same violations. The Commission could not decide the merits from the existing record, so it remanded the matter to a judge to determine whether relief was available under Rule 60(b). The Secretary did not oppose reopening, and two commissioners would have granted the motion outright.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The request to reopen the final penalty assessment was remanded to a judge for a Rule 60(b) determination.
• Key point: A final penalty assessment may be reopened when the record may support relief from default, but the judge must first determine whether the Rule 60(b) criteria are met.

Full text (FMSHRC public release)

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

                                      March 8, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 2000-93-M
: A.C. No. 04-05247-05508 A
BAUMAN LANDSCAPE, 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 27, 1999, the Commission received from
Bauman Landscape 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 Bauman Landscape.

   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 his request, Michael Bauman, an owner of Bauman Landscape, asserts that he did not

receive a copy of the original proposed penalty assessment. Mot. Bauman states that he was not
aware of the proposed penalties and thus, never had an opportunity to appeal them. Id. Bauman
claims that the U.S. Postal return receipt was not signed by him. Id. He asserts that he already
has paid penalties for the same violations giving rise to the subject penalties. Id. Bauman
requests an opportunity for a hearing to appeal these penalty assessments. 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., Harvey Trucking, 21 FMSHRC 567 (June 1999) (remanding to a judge
where the operator did not receive the proposed penalty assessment because delivery was
unsuccessful for no known reason); Gary Klinefelter, 19 FMSHRC 827, 828 (May 1997)

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Page 2

(remanding the matter to a judge where delivery of the proposed assessment was unsuccessful
and movant offered no explanation for unsuccessful delivery); Waste Coal Management, Inc., 14
FMSHRC 423, 423-24 (Mar. 1992) (remanding where default order sent by certified mail may
not have been received by operator). 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 have previously 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).

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

position.1 In the interest of justice, we remand the matter for assignment to a judge to determine
whether Bauman has met the criteria for relief under Rule 60(b). 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 Bauman Landscape’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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Page 3

Distribution

Michael P. Bauman
Bauman Landscape, Inc.
115 Brookside Drive
Richmond, CA 94801

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 291