Dicaperl Minerals Corporation (Commission decision, April 20, 2005)

Plain-English summary

Dicaperl Minerals timely contested a citation, but later misplaced the proposed penalty assessment for that citation and did not forward it to counsel before the contest deadline. The Secretary did not oppose reopening the assessment, which had become a final Commission order. The Commission held that relief may be available for mistake or inadvertence when an operator can show good cause. It remanded the matter to the Chief ALJ to determine whether good cause existed and whether the final order should be reopened.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. §§ 801 and 815(a)
• Outcome: The reopening request was remanded for a good-cause determination.
• Key point: A misplaced penalty assessment may be reopened if the operator establishes good cause for the untimely contest.

Full text (FMSHRC public release)

DICAPERL MINERALS CORPORATION -- April 20, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

April 20, 2005

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEST 2005-216-M
v. : A.C. No. 05-00438-47837
:
DICAPERL MINERALS CORPORATION :

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 March 8, 2005, the Commission received from Dicaperl Minerals Corporation ("Dicaperl") a motion made by counsel 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 September 3, 2004, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued Citation No. 6300457 to Dicaperl's El Grande Plant in Antonito, Colorado. Dicaperl timely contested the citation, which is currently the subject of Docket No. WEST 2004-511-RM, on stay before Commission Administrative Law Judge Richard Manning. On January 12, 2005, MSHA issued to Dicaperl a proposed penalty assessment for Citation No. 6300457 (A.C. No. 05-00438-47837). In its motion, Dicaperl states that the proposed assessment was subsequently misplaced and was not forwarded to counsel in time for the proposed penalty to be timely contested. Mot. at 2. The Secretary states that she does not oppose Dicaperl'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 Dicaperl'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 Dicaperl'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:

Karen L. Johnson, Esq.

Jackson Kelly, PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

John Rainwater, Esq.

Office of the Solicitor

U.S. Department of Labor

P.O. Box 46550

Denver, CO 80201-6550

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, Suite 9500

Washington, D.C. 20001