John Martin, employed by Roaring Fork Aggregates, Inc.

Plain-English summary

John Martin asked the Commission to reopen a section 110(c) penalty assessment that had become final after his hearing request was filed late. Martin’s counsel said he relied on an erroneous statement from MSHA about when Martin received the proposed assessment. The Commission found that Martin intended to contest the penalty and that the late filing could qualify as inadvertence or excusable neglect under Rule 60(b)(1), so it reopened the assessment and allowed the case to proceed. The Chairman and one commissioner would instead have remanded the matter to a judge to assess the reliability of Martin’s evidence.

Decision snapshot

• Governing authorities: 30 U.S.C. § 820(c); 30 U.S.C. § 815(a); Fed. R. Civ. P. 60(b)(1)
• Outcome: The section 110(c) penalty assessment against Martin was reopened.
• Key point: Reliance on an erroneous agency statement may support reopening a final penalty assessment when the record shows the respondent intended to contest it.

Full text (FMSHRC public release)

JOHN MARTIN, employed by ROARING FORK AGGREGATES, INC.
June 1, 1999
WEST 99-144-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                      June 1, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 99-144-M
: A. C. No. 05-03802-05529A
JOHN MARTIN, employed by :
ROARING FORK AGGREGATES, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners

                          ORDER

BY: Marks, Verheggen, and Beatty, Commissioners

 This matter arises under the Federal Mine Safety and Health

Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On
March 1, 1999, the Commission received from John Martin, an
employee of Roaring Fork Aggregates, Inc. ("Roaring Fork"), a
request to reopen a penalty assessment for a violation of section
110(c) of the Mine Act, 30 U.S.C. § 820(c), 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 Martin's
motion requesting relief under Fed. R. Civ. P. 60(b).

 Under section 105(a) of the Mine Act, an individual charged

with a violation under section 110(c) has 30 days following
receipt of the Secretary of Labor's proposed penalty assessment
within which to notify the Secretary that he or she wishes to
contest the proposed penalty. 30 U.S.C. § 815(a); see also 29
C.F.R. § 2700.26. If the individual fails to notify the
Secretary, the proposed penalty assessment is deemed a final
order of the Commission. 30 U.S.C. § 815(a); 29 C.F.R.
§ 2700.27.

 Martin submits that his failure to timely contest the

section 110(c) penalties proposed against him was due to his
counsel's reliance on an erroneous statement made by a
representative of the Department of Labor's Mine Safety and
Health Administration ("MSHA"). Mot. at 2. The proposed
penalties against Martin stem from a July 19, 1997 fatal
accident, which also resulted in the issuance of three August 7,
1997 section 104(d)(1) orders against Roaring Fork. Id. at 1.
The section 104(d)(1) orders are the subject of proceedings
before Administrative Law Judge Richard Manning. Id. These
proceedings were stayed to allow a section 110(c) investigation
of Martin and Shane Porter, another employee of Roaring Fork, to
proceed. Id. at 1-2. Counsel for Martin states that, on January
15, 1999, agents for the operator provided counsel with the
notice of proposed assessment served upon Martin, but that the
operator's agents did not inform counsel of the date the proposed
penalty assessment had been received by Martin. Id. at 2.
Counsel alleges that, during a January 28 telephone conversation,
MSHA's Civil Penalty Compliance Office informed him that Martin
received the proposed penalty assessment on January 13. Id.
On February 25, counsel received written notice from MSHA's Civil
Penalty Compliance Office that the proposed penalty assessment
for Martin had been received on January 8, that the hearing
request filed by Martin on February 10 was therefore untimely,
and that the proposed penalty had become a final order of the
Commission. Id.
and that the proposed penalty had become a final order of the
Commission. Id.

 We have held that, in appropriate circumstances and pursuant

to Rule 60(b), we possess jurisdiction to reopen uncontested
assessments that have become final under section 105(a). Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter
Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). We also have
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 previously have afforded a
party relief from a final order of the Commission on the basis of
inadvertence or mistake. See National Lime & Stone, Inc., 20
FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613,
1614-15 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021,
1022-23 (June 1997).

 The record indicates that Martin intended to contest the

proposed penalty issued against him, and that, but for his
counsel's reliance upon an MSHA representatives' erroneous
statement, he likely would have contested the proposed penalty.
In the circumstances presented here, Martin's late filing of a
hearing request may be considered inadvertence or excusable
neglect within the meaning of Rule 60(b)(1). See National Lime &
Stone, 20 FMSHRC at 924-25 (reopening matter when operator's late
filing of hearing request was due to mutual misunderstanding
between counsel for operator and counsel for MSHA as to need to
challenge penalty assessment prior to judge's approval of
parties' settlement); Stillwater, 19 FMSHRC at 1022-23 (granting
operator's motion to reopen when operator failed to submit
request for hearing to contest proposed penalty due to lack of
coordination between recipient of assessment at mining facility
and its attorneys, after indicating intent to contest related
citation).
Accordingly, in the interest of justice, we reopen this
penalty assessment that became a final order with respect to the
section 110(c) penalties proposed against Martin in this case.
The case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

                          Marc Lincoln Marks, Commissioner

                          Theodore F. Verheggen, Commissioner

                          Robert H. Beatty, Jr., Commissioner


 Chairman Jordan and Commissioner Riley, dissenting:

 We would remand this case for the purpose of assessing the

reliability of evidence presented by Martin as to why he did
not request a hearing in a timely manner. Although we are
mindful that the Secretary does not object to this motion, we
would nonetheless remand to a judge for the initial evaluation
of the evidence, which clearly is not within the province of
a reviewing body. See Driessen v. Nevada Goldfields, Inc.,
20 FMSHRC 324, 332 n.14 (Apr. 1998).

                          Mary Lu Jordan, Chairman

                          James C. Riley, Commissioner

Distribution

Timothy A. Thulson, Esq.
Balcomb & Green, P.C.
P.O. Drawer 790
Glenwood Spring, CO 81602

Edward Falkowski, Esq.
Office of the Solicitor
U.S. Department of Labor
1999 Broadway, Suite 1600
Denver, CO 80202-5716

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