B & B Crushing (Commission decision, May 10, 2002)

Plain-English summary

B & B Crushing asked the Commission to reopen a $321 penalty assessment after it failed to contest the penalty on time. The company believed the penalty should have been included in an earlier dismissal order that vacated three different citations. The Commission found that the record did not explain or support why the later citation should have been included, so it remanded the matter to a judge to decide whether relief from the final order was appropriate. The underlying case could proceed if reopening is granted.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The request to reopen the final penalty assessment was remanded for a judge’s determination.
• Key point: A mistaken belief that an earlier dismissal covered another citation may support relief, but the operator must provide an explanation and supporting evidence.

Full text (FMSHRC public release)

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

May 10, 2002

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
: Docket No. WEST 2002-109-M
v. : A.C. No. 35-03516-05502
:
B & B CRUSHING
:

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION

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 5, 2001, the Commission received from B & B Crushing (“B & B”) 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).

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).

On August 13, 2001, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment (A.C. No. 35-03516-05502) to B & B for the sum of $321 relating to Citation No. 07986780. In its request, B & B asserts that it did not file a hearing request to contest the proposed penalty because it believed the civil penalty should have been included in an Order of Dismissal issued by Administrative Law Judge Jerold Feldman on July 18, 2001 (Docket No. WEST 2001-408-M). Mot. Apparently proceeding pro se, B & B attached a copy of the dismissal order to its request. Id., Attach. The dismissal order involved

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another proposed penalty assessment (A.C. No. 35-03516-0551) issued to B & B on April 13, 2001, involving Citation Nos. 7986781, 7986782, and 7986784. In the dismissal order, the judge vacated the three citations and dismissed the proceedings. There is nothing in the record for Docket No. WEST 2001-408-M to indicate that the dismissal order should have included Citation No. 07986780.

We have held that, in appropriate circumstances, 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) (“JWR”); 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 Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has found guidance in, and has applied “so far as practicable,” Rule 60(b) of the Federal Rules of Civil Procedure. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. 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).

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On the basis of the present record, however, we are unable to evaluate the merits of B & B’s position. In particular, B & B provides no explanation or supporting evidence for its assertion that Citation No. 07986780 should have been included in the dismissal order issued on July 18, 2001. In the interest of justice, we remand the matter for assignment to a judge to determine whether relief from the final order is appropriate. See Eclipse C Corp., 23 FMSHRC 134, 134-36 (Feb. 2001) (remanding to judge where operator filed request for hearing in one proceeding and mistakenly believed that request applied to other citations it received at the same time). 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.

Theodore F. Verheggen, Chairman

Mary Lu Jordan, Commissioner

Robert H. Beatty, Jr., Commissioner

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Distribution

George J. Bora
B & B Crushing
P.O. 3500-181
Sister, OR 97759

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209

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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