American On Site; Jeremiah Inc. (Commission decision, March 18, 2005)

Plain-English summary

American On Site; Jeremiah Inc. was shown as a contractor on an MSHA proposed penalty assessment issued on November 26, 2004. The company's president later wrote to ask about the assessment, and the Commission treated the letter as a request to reopen an assessment that had become final after the company did not contest it within 30 days. The Secretary did not oppose the request. The Commission remanded the matter to the Chief Administrative Law Judge to decide whether good cause existed for the late contest and whether relief from the final order should be granted. The Commission did not decide the penalty.

Decision snapshot

• Cited 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 good-cause determination.
• Key point: The Commission left reopening and any further penalty proceedings to the Chief Administrative Law Judge.

Full text (FMSHRC public release)

AMERICAN ON SITE; JEREMIAH INC.-- March 18, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

March 18, 2005

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEST 2005-190-M
v. : A.C. No. 35-03260-43979 J874
:
AMERICAN ON SITE; JEREMIAH INC. :

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. (2000) ("Mine Act"). On February 14, 2005, the Commission received from American On Site; Jeremiah Inc. ("AOS-Jeremiah") a letter that we construe as 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).

On November 26, 2004, the Department of Labor's Mine Safety and Health Administration ("MSHA") served a proposed penalty assessment (A.C. No. 35-03260-43979 J874) to AOS-Jeremiah, which was shown as a contractor on the proposed assessment (the mine name is shown as Harvey W. Buche Road Building, Inc.). In the letter, AOS-Jeremiah's president, David Bush, inquires about the status of the penalty assessment. He also refers to prior correspondence relating to another case. The Secretary states that she does not oppose AOS-Jeremiah'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 AOS-Jeremiah's motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for the company'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:

David Bush, President

American On Site; Jeremiah, Inc.

810 E. Main Street

Molalla, OR 97038

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