Barrick Goldstrike Mines (Commission decision, May 4, 2005)

Plain-English summary

Barrick Goldstrike Mines received a proposed penalty assessment but misplaced it before its safety department could act, and its later contest was untimely. The Secretary did not oppose reopening the assessment, which had become a final Commission order after the 30-day contest period. The Commission recognized 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 decide 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 support reopening a final order if the operator can establish good cause for the late contest.

Full text (FMSHRC public release)

BARRICK GOLDSTRIKE MINES -- May 4, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

May 4, 2005

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEST 2005-229-M
v. : A.C. No. 26-02246-45879
:
BARRICK GOLDSTRIKE MINES :

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 11, 2005, the Commission received from Barrick Goldstrike Mines ("Barrick") 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 January 4, 2005, Barrick received from the Department of Labor's Mine Safety and Health Administration ("MSHA") the proposed penalty assessment that is at issue. Mot. at Ex. A. In its motion, Barrick states that the proposed assessment was subsequently misplaced, and that by the time the company's safety department received it, the period for contesting the proposed assessment had lapsed. Mot. at 1-2. Although Barrick subsequently attempted to contest the proposed assessment, MSHA informed the company that the contest was untimely. Mot. at Ex. A. The Secretary states that she does not oppose Barrick'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 Barrick'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 Barrick'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:

Michael T. Heenan, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

2400 N Street, N.W., Fifth Floor

Washington, D.C. 20037

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