Shane Porter, employed by Roaring Fork Aggregates, Inc.

Plain-English summary

Shane Porter, an employee of Roaring Fork Aggregates, sought to reopen a Mine Act penalty assessment that had become final after he missed the deadline to contest it. His counsel said that an MSHA representative gave an incorrect date for when Porter received the proposed assessment, causing the hearing request to be filed late. The assessment arose from a section 110(c) penalty connected to a July 19, 1997 fatal accident at the mine. The Commission majority found that Porter intended to contest the penalty and that the late filing resulted from inadvertence or excusable neglect under Rule 60(b)(1). It reopened the assessment so the case could proceed under the Mine Act and Commission rules. Chairman Jordan and Commissioner Riley dissented and would have sent the matter to a judge first to assess the evidence.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(a) and 820(c); 29 C.F.R. §§ 2700.26 and 2700.27
• Outcome: The final section 110(c) penalty assessment was reopened, and the case was allowed to proceed.
• Key point: A documented filing delay caused by erroneous deadline information may support relief from a final penalty assessment under Rule 60(b)(1).

Full text (FMSHRC public release)

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 99-145-M
: A. C. No. 05-03802-05531A
SHANE PORTER, 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 Shane Porter, 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 Porter’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.

   Porter submits that his failure to timely contest the section 110(c) penalties proposed


                                    21 FMSHRC 556

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 Porter 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 Porter and John Martin, another employee of Roaring Fork, to proceed. Id. at 1-2. Counsel for Porter states that, on January 15, 1999, agents for the operator provided counsel
with the notice of proposed assessment served upon Porter, but that the operator’s agents did not
inform counsel of the date the proposed penalty assessment had been received by Porter. Id. at 2.
Counsel alleges that, during a January 28 telephone conversation, MSHA’s Civil Penalty
Compliance Office informed him that Porter 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 Porter had been received on January
8, that the hearing request filed by Porter on February 10 was therefore untimely, 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 Porter 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,
Porter’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).

                                   21 FMSHRC 557


    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 Porter 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




                                    21 FMSHRC 558

Chairman Jordan and Commissioner Riley, dissenting:

   We would remand this case for the purpose of assessing the reliability of evidence

presented by Porter 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




                                   21 FMSHRC 559

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

                               21 FMSHRC 560