Good Construction

Plain-English summary

Good Construction asked the Commission to reopen a proposed penalty that had become final after the company allegedly did not receive the penalty assessment for one citation. The company said it had contested five citations, that proceedings involving four had begun, and that it never received the assessment for the fifth citation. The Secretary did not oppose the request. The Commission majority remanded the matter to a judge to decide whether Good Construction met the requirements for relief under Federal Rule of Civil Procedure 60(b). Two Commissioners dissented and would have granted relief based on the record.

Decision snapshot

• Cited authority: 30 U.S.C. § 801, 30 U.S.C. § 815(a), 29 C.F.R. § 2700
• Outcome: The Commission remanded the matter for a judge to decide whether to reopen the final penalty assessment.
• Key point: A judge must determine on the record whether the operator qualifies for relief from the final order under Rule 60(b).

Full text (FMSHRC public release)

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

                                      June 21, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 99-263-M
: A.C. No. 45-03086-05511
GOOD CONSTRUCTION :

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

                                          ORDER

BY: Jordan, Chairman; Riley, 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 May 4, 1999, the Commission received from Good
Construction 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 Good Construction.

   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, Good Construction maintains that it failed to timely file a request for a

hearing ("green card") for the proposed penalty associated with Citation No. 7962496 because it
never received the green card. Mot. at 2. The operator submits that the subject citation was one
of five citations that it contested, and that the contest proceedings were stayed pending initiation
of associated civil penalty proceedings. Id. at 1. Good Construction states that civil penalty
proceedings were initiated involving four of the citations. Id. It explains that, in response to an

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Page 2

order issued by Administrative Law Judge Richard Manning requesting the status of the
proposed penalty assessment relating to the fifth citation, the Secretary responded that she had
not yet issued a proposed penalty. Id.; Exs. 4, 5. The operator states that, in response to a
subsequent order by the judge, Good Construction requested a hearing on the contest proceedings
and on the civil penalty proceedings related to the four citations. Mot. at 2; Exs. 6, 7. The
operator submits that, on December 7, 1998, a proposed assessment for the fifth citation was
mailed to it, but that Good Construction never received it. Mot. at 2. It states that, after it was
informed on February 24, 1999 that it was delinquent in paying the penalty, it subsequently
corresponded and telephoned the Department of Labor's Mine Safety and Health Administration
("MSHA") regarding the matter. Id. Among other documents, the operator attached to its
motion a memorandum from MSHA, stating that the penalty petition had been delivered to Good
Construction on many occasions, but that it was never claimed by the operator. Ex. 10.

    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). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-90 (May 1993). 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 National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal
Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997).

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Page 3

    On the basis of the present record, we are unable to evaluate the merits of Good

Construction's position. In the interest of justice, we remand the matter for assignment to a
judge to determine whether Good Construction has met the criteria for relief under Rule 60(b).
See Gary Klinefelter, 19 FMSHRC 827, 828 (May 1997) (remanding for determination of
whether relief from final order warranted where unclear why individual did not receive proposed
penalty); Waste Coal Management, Inc., 14 FMSHRC 423, 423-24 (Mar. 1992) (remanding
where default order sent by certified mail may not have been received by operator). 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




                                        James C. Riley, Commissioner




                                        Robert H. Beatty, Jr., Commissioner



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Page 4

Commissioners Marks and Verheggen, dissenting:

    Good Construction has alleged that it never received the penalty proposal associated with

Citation No. 7962496. Mot. at 2. The Secretary of Labor has not disputed any of the facts set
forth in Good Constructions's motion, and, in fact, does not oppose the motion. On the basis of
the present record, we would grant Good Construction's request for relief. See Harvey Trucking,
21 FMSHRC , slip op. at 4, No. WEVA 99-87 (June 11, 1999) (Commissioners Marks and
Verheggen, dissenting).

                                         Marc Lincoln Marks, Commissioner




                                         Theodore F. Verheggen, Commissioner



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Page 5

Distribution

James A. Nelson, Esq.
205 Cowlitz, P.O. Box 878
Toledo, WA 98591

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

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

                               21 FMSHRC 601