Essayons, Inc. (Commission decision, August 7, 1998)

Plain-English summary

Essayons asked to reopen a penalty assessment that became a final Commission order after the company missed the 30-day deadline to contest it. The company said it misplaced the proposed assessment notification, and the Secretary did not oppose relief. The Commission held that the record did not yet allow it to evaluate whether the mistake justified relief under Federal Rule of Civil Procedure 60(b). It remanded the matter to a judge to determine whether Essayons met the criteria for reopening, after which the case could proceed under the Mine Act and Commission rules.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. Part 2700
• Outcome: The reopening request was remanded for a judge to determine whether Rule 60(b) relief was appropriate.
• Key point: A missed penalty-contest deadline may be excused for mistake or inadvertence, but the operator must establish adequate cause on the record.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

August 7, 1998

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
:
22. : Docket No. WEST 98-338-M : A.C. No. 04-05271-05509
ESSAYONS, INC.
:

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, 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) (AMine Act@). On July 17, 1998, the Commission received from Essayons, Inc. (AEssayons@) 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). It has been administratively determined that the Secretary of Labor does not oppose the motion for relief filed by Essayons.

Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the Secretary of Labor=s proposed penalty assessment within which to notify the Secretary that it wishes to contest the proposed penalty. 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).

In its request, Essayons contends that its failure to timely file a hearing request to contest a proposed penalty was due to its misplacement of the proposed assessment notification. Essayons asserts that before it mailed the hearing request, however, the thirty-day deadline for submission of the request had already passed.

We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen uncontested assessments that have become final by operation of section 105(a). See, e.g., Del Rio, Inc., 19 FMSHRC 467, 468 (Mar. 1997) (remanding final

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order when operator inadvertently misfiled hearing request card); RB Coal Co., 17 FMSHRC 1110, 1111 (July 1995) (remanding final order when operator misplaced hearing request card); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of adequate or good cause for the failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule 60(b)(1), we have previously afforded a party relief from a final order of the Commission on the basis of inadvertence or mistake. See Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); General Chem. Corp., 18 FMSHRC 704, 705 (May 1996).

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On the basis of the present record, we are unable to evaluate the merits of Essayons= position. In the interest of justice, we remand the matter for assignment to a judge to determine whether Essayons has met the criteria for relief under Rule 60(b). If the judge determines 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.

Mary Lu Jordan, Chairman

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Theodore F. Verheggen, Commissioner

Robert H. Beatty, Jr., Commissioner

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Distribution

Bruce Mcintosh, Vice President
Essayons, Inc.
2409 Oberlin Rd.
Yreka, CA 96097

Shelia Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

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