Southwest Rock Products, LLC (Commission decision, January 12, 2009)

Plain-English summary

Two proposed penalty assessments against Southwest Rock Products became final Commission orders after they were not timely contested. Southwest requested reopening, and the Secretary supported relief so the parties' settlement could be considered. The Commission looked to Federal Rule of Civil Procedure 60(b) and its policy that default is a harsh remedy when good cause exists. It granted reopening on the submitted record. The case was remanded to the Chief ALJ to rule on the attached settlement motion.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The final assessments were reopened and the matter was remanded for a ruling on the settlement motion.
• Key point: Reopening was appropriate where both parties sought review of an agreed settlement rather than enforcement of the defaulted assessments.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 12, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

SOUTHWEST ROCK PRODUCTS, LLC

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Docket No. WEST 2009-51-M
A.C. No. 02-03111-141339

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 October 16, 2008, the Commission received from Southwest Rock Products, LLC (“Southwest”) a request to reopen two penalty assessments 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, 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).

The Secretary supports reopening of the proposed penalty assessments in order that the parties’ agreement to settle the assessments can be approved.

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 mistake, inadvertence, or excusable neglect. 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 Southwest’s request and the Secretary’s response, we grant reopening and hereby remand this matter to the Chief Administrative Law Judge to rule on the motion for approval of the settlement attached to the Secretary’s response.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

Christopher Reinesch

Southwest Rock Products, LLC

745 N. Gilbert Rd., #124-304

Gilbert, AZ 85234

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

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 & Health Review Commission

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

Washington, D.C. 20001-2021