DeWayne Herren (Commission decision, October 6, 2004)

Plain-English summary

DeWayne Herren asked to reopen a final penalty assessment for alleged section 110(c) violations, stating that inadvertence, mistake, or misunderstanding kept him from defending against them. The Secretary asked for a remand so both sides could present evidence and legal arguments about reopening. The Commission remanded the matter to the Chief Administrative Law Judge to decide whether good cause supported relief from the final order. It did not decide whether the penalty should be reopened.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.26, and 2700.27; 30 U.S.C. §§ 815(a) and 820(c)
• Outcome: The request to reopen was remanded for a good-cause determination.
• Key point: A remand permits the judge to assess Herren’s explanation and the parties' evidence before deciding whether to reopen a final penalty order.

Full text (FMSHRC public release)

DeWAYNE HERREN -- October 6, 2004

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

October 6, 2004

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEST 2004-311-M
v. : A.C. No. 48-01497-06604 A
:
DeWAYNE HERREN :
:

BEFORE: Duffy, Chairman; 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 May 17, 2004, the Commission received from DeWayne Herren a Request to Reopen Contest of Penalty Assessment for violations of section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had become final orders 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 and the Commission's Procedural Rules, an individual charged with a violation under section 110(c) has 30 days following receipt of the Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.

On August 18, 2003, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 48-01497-06604 A) to Herren. In the request, Herren asserts that he did not defend against the proposed penalty because of inadvertence, mistake and/or misunderstanding. Mot. at 2. In his affidavit supporting the request, Herren states that he "had never been involved in anything like this before" and now that he has an attorney and understands the process, he would like an opportunity to present his case. Aff. at 1-2. The Secretary filed a response to the Herren's request, seeking a remand with the instruction that both parties have an opportunity to present relevant evidence and legal arguments on whether Herren's request to reopen this proceeding should be granted. Sec'y Resp. at 2-3.

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 Herren's motion and the Secretary's response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Herren'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

______
Mary Lu Jordan, Commissioner

______
Stanley C. Suboleski, Commissioner

______
Michael G. Young, Commissioner

Distribution:

Frank D. Neville, Esq.

Williams, Porter, Day & Neville, P.C.

159 North Wolcott, Suite 400

P.O. Box 10700

Casper, WY 82602

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22203

Myra James
Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

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

Washington, D.C. 20001