Christensen Construction and Gravel, Inc. (Commission decision, April 5, 2004)

Plain-English summary

Christensen Construction and Gravel failed to timely contest a proposed penalty after confusing it with an earlier penalty that had been settled. The Secretary did not oppose the operator’s request to reopen the resulting final order. The Commission remanded the matter to the Chief Administrative Law Judge to decide whether Christensen had good cause for missing the deadline and whether relief should be granted. If relief is appropriate, the case will proceed under the Mine Act and the Commission’s procedural rules.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The matter was remanded for a determination of good cause and possible relief from the final penalty order.
• Key point: A mistake may support reopening an uncontested penalty, but the ALJ must first determine whether the operator showed good cause.

Full text (FMSHRC public release)

CHRISTENSEN CONSTRUCTION AND GRAVEL, INC. -- April 5, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

April 5, 2004

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 2004-117-M
: A.C. No. 42-01828-05513
CHRISTENSEN CONSTRUCTION :
AND GRAVEL, INC. :

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, 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 January 20, 2004, the Commission received from Christensen Construction and Gravel, Inc. ("Christensen") 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 who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. 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, Christensen states that it failed to contest in a timely manner because it confused the present penalty assessment with an earlier one that it had just settled, which was for a similar amount. Mot. It further asserts that, sometime later, Christensen realized its mistake and contacted the Commission. Id. Christensen did not attach any supporting documentation to its request. The Secretary states that she does not oppose Christensen's request for relief.

We have held that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a 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).

Having reviewed Christensen's request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Christensen's failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined 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.

______
Michael F. Duffy, Chairman

______
Robert H. Beatty, Jr., Commissioner

______
Mary Lu Jordan, Commissioner

______
Stanley C. Suboleski, Commissioner

______
Michael G. Young, Commissioner

Distribution:

Bert Z. Christensen, Vice President

Christensen Construction & Gravel, Inc.

2151 North 600 West

Logan, UT 84321

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021