Mike Dover Corporation (Commission decision, May 2, 2012)

Plain-English summary

Mike Dover Corporation asked the Commission to reopen two penalty assessments that had become final orders after no timely contests were received. The Secretary did not oppose either request. After reviewing the submissions, the Commission reopened both matters in the interests of justice. It remanded them for further proceedings and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a) and 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: Both final assessments were reopened and remanded for penalty proceedings.
• Key point: The Commission may reopen multiple final assessments together when the Secretary does not oppose and the interests of justice support further proceedings.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 2, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

v.

MIKE DOVER CORPORATION

:

:

:

:

:

:

:

:

:

Docket No. WEVA 2012-412

A.C. No. 46-03303-267747

Docket No. WEVA 2012-413

A.C. No. 46-03303-270479

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On December 14, 2011, the Commission received from Mike Dover Corporation (“Dover”) two motions seeking 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).

The Secretary does not oppose the requests to reopen.

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).

We have held, however, 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 Dover’s requests and the Secretary’s responses, in the interests of justice, we hereby reopen these matters and remand them to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy Michael F. Duffy, Commissioner

/s/ Michael G. Young Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura Patrick K. Nakamura, Commissioner

Distribution:

Christopher D. Pence, Esq.

Guthrie, & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. 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