Cannelton Industries, Inc.

Plain-English summary

Cannelton Industries and two employees asked the Commission to remand the case and reopen the record so they could submit evidence that their hearing attorney had failed to present. The Commission held that the attorney's failure did not justify relief under Federal Rule of Civil Procedure 60(b), because parties are generally accountable for their attorneys' omissions. The Commission also struck the extra-record evidence and references to it insofar as they addressed the merits, because that material had not been subject to cross-examination or rebuttal. The motions to remand, reopen, and stay review were denied, and the parties were ordered to file briefs.

Decision snapshot

• Cited provisions: 30 C.F.R. § 75.400; 29 C.F.R. §§ 2700.1(b) and 2700.75(a); 30 U.S.C. §§ 801, 823(c), and 823(d)(2)(C)
• Outcome: The motions to remand, reopen the record, and stay review were denied. The motion to strike was granted in part, and briefing was ordered.
• Key point: A party generally cannot reopen the Commission review record because its chosen attorney failed to present evidence that was available at the hearing.

Full text (FMSHRC public release)

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

                         September 30, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 94-381
:
CANNELTON INDUSTRIES, INC. :
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 95-100
:
CHARLES PATTERSON, employed by :
CANNELTON INDUSTRIES, INC. :
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 95-101
:
GEORGE RICHARDSON, employed by :
CANNELTON INDUSTRIES, INC. :

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1

                                        ORDER

BY: Jordan, Chairman; and Riley, Commissioner

   These civil penalty proceedings arise under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act”). On April 29, 1996, Administrative Law
Judge Todd Hodgdon issued a decision in which he concluded that Cannelton Industries, Inc.

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      Commissioner Holen participated in the consideration of this matter, but her term

expired before issuance of this order. Pursuant to section 113(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been designated to
exercise the powers of the Commission.

(“Cannelton”) violated 30 C.F.R. § 75.400 by failing to clean up an accumulation of coal under a
conveyor belt, that the violation was significant and substantial (“S&S”) and the result of
unwarrantable failure, and that Charles Patterson and George Richardson, employed by
Cannelton, knowingly authorized the violation by failing to have the accumulation cleaned up. 18
FMSHRC 651, 654-61 (April 1996) (ALJ). The judge ordered Cannelton, Patterson, and
Richardson to pay civil penalties of $3,600, $500, and $500, respectively. 18 FMSHRC at 661-

62. The Commission granted the petition for discretionary review filed by counsel for Cannelton,
    Patterson, and Richardson, challenging the judge’s determinations.

    On July 15, 1996, counsel for Cannelton, Patterson, and Richardson filed a motion to
    

    remand and reopen the record and motion to stay review proceedings. Counsel explains that the
    movants’counsel at the hearing, an inexperienced attorney within the same law firm, failed to
    present certain relevant evidence because its existence “slipped his mind.” Mot. at 5 & Att. B.
    He asserts the failure to present the evidence was not the result of culpable conduct by the
    movants and the evidence establishes a defense that would have altered the outcome of the case
    had it been admitted. Id. at 9. Attached to the motion are photocopies of the evidence and the
    affidavit of the hearing counsel. Atts. A & B. Counsel requests that, pursuant to Fed. R. Civ. P.
    60(b),2 the Commission remand the matter to the judge, order the record to be reopened for the
    taking of additional evidence, and stay review proceedings pending the judge’s decision on
    remand.3 Mot. at 9-10. He asserts that the Secretary of Labor would not be prejudiced by the
    granting of the motion. Id. at 9.4

    On July 18, 1996, the Secretary filed an opposition to the motion and a motion to strike.
    He argues that the movants have not established a basis for relief under Rule 60(b) and that he
    would be prejudiced by the granting of relief and requests that the Commission deny the motion.
    S. Opp. at 4-13. In addition, the Secretary requests that the evidentiary material attached to the

    2
    Rule 60(b) states, in part:

            On motion and upon such terms as are just, the court may relieve a
            party or his legal representative from a final judgment, order, or
            proceeding for the following reasons: (1) mistake, inadvertence,
            surprise, or excusable neglect; . . . or (6) any other reason justifying
            relief from the operation of the judgment.
    

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    Counsel also requests that briefing be stayed pending the Commission’s consideration of
    the motion. Mot. at 3. On July 17, 1996, the Commission issued an order staying the filing of
    briefs until further notice.
    4
    On July 18, 1996, counsel filed a supplemental statement to the motion, contending that
    the judge incorrectly stated the date on which the citation was issued and that, in view of the
    correct date, the additional evidence is relevant to whether Cannelton had notice of the
    accumulation. Supp. Statement at 1.

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motion and all references thereto be stricken from the record because it was not properly
introduced. Id. at 13-14.

    On August 2, 1996, counsel for Cannelton, Patterson, and Richardson filed an opposition

to the Secretary’s motion to strike. Counsel argues that submission of the evidentiary material is
necessary to justify reopening the record and requests that the Commission deny the motion to
strike. C. Opp. at 3-5.

    A final Commission judgment or order may be reopened under Rule 60(b)(1) & (6) in

circumstances such as mistake, inadvertence, excusable neglect, or other reasons justifying relief.
29 C.F.R. § 2700.1(b) (Federal Rules of Civil Procedure apply “so far as practicable” in the
absence of applicable Commission rules). Rule 60(b) motions are committed to the sound
discretion of the judicial tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F.2d
1317, 1320 (D.C. Cir. 1987), cert. denied, 484 U.S. 1027 (1988). Rule 60(b) is “the mechanism
by which courts temper the finality of judgments with the necessity to distribute justice” and “is a
tool which trial courts are to use sparingly. . . .” Randall, 820 F.2d at 1322. See also Tolbert v.
Chaney Creek Coal Corp., 12 FMSHRC 615, 619 n.1 (April 1990).

   In Midwest Minerals, Inc., 12 FMSHRC 1375 (July 1990), the Commission denied an

operator’s motion to remand and reopen the record for the taking of additional evidence where its
non-attorney representative failed to introduce evidence relevant to its defense. The Commission
reasoned:

           Because the adequacy of a party’s representation at hearing is linked to the
   party’s choice of its representative, we must look askance at any request that Rule
   60(b) relief be granted because the party’s chosen representative is claimed to have
   performed ineffectually at the hearing before the judge resulting in an adverse
   decision. Routinely granting such relief would . . . unfairly provide a losing party
   “a second turn at bat.”

Id. at 1377. Similarly, in this case, the attorney’s failure to present evidence at the hearing does
not provide a basis for reopening the record.

     In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993),

the Supreme Court reaffirmed the principle that “clients must be held accountable for the acts and
omissions of their attorneys.” Id. at 396 (citing Link v. Wabash R.R., 370 U.S. 626, 633-34
(1962), United States v. Boyle, 469 U.S. 241 (1985)). The Court further explained that whether a
party’s neglect is excusable is an equitable determination in which consideration should be given
to “all relevant circumstances surrounding the party’s omission.” Id. at 395. The Court
emphasized that the focus is upon the neglect of both the clients and their counsel. Id. at 397.
Here, counsel for Cannelton, Patterson, and Richardson asserts that the movants had provided the
evidentiary material to the attorney, who was in possession of it during the hearing. Mot. at 5 &
Att. B. Thus, knowledge of the evidentiary material can be charged upon both the movants and

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their attorney.

     We conclude that movants have not met the criteria for relief under Rule 60(b). Although

it is unfortunate that the evidentiary material “slipped the attorney’s mind,” the movants must be
held accountable for the failure of counsel. Accordingly, we deny the motion to remand and
reopen the record and the motion to stay review proceedings.

    With regard to the motion to strike, the Secretary points out that the evidentiary material

in question was not part of the record before the judge and was not subject to cross-examination
or rebuttal. S. Opp. at 13. He correctly asserts that the Commission’s consideration on review of
this extra-record evidentiary material would contravene section 113(d)(2)(C) of the Mine Act, 30
U.S.C. § 823(d)(2)(C).5 S. Opp. at 13-14. Therefore, we grant the motion to strike the
evidentiary material and references to it from the motion insofar as it addresses the merits of the
case. See Midwest, 12 FMSHRC at 1377 n.3.

    Cannelton, Patterson, and Richardson are hereby ordered to file opening briefs within 30

days of the date of this order. Other briefs shall be filed in accordance with 29 C.F.R.
§ 2700.75(a).

                                            Mary Lu Jordan, Chairman




                                            James C. Riley, Commissioner




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        Section 113(d)(2)(C) states, in part:

                      For the purpose of review by the Commission . . . the
              record shall include: (i) all matters constituting the record upon
              which the decision of the administrative law judge was based; (ii)
              the rulings upon proposed findings and conclusions; (iii) the
              decision of the administrative law judge; (iv) the petition or
              petitions for discretionary review, responses thereto, and the
              Commission’s order for review; and (v) briefs filed on review. No
              other material shall be considered by the Commission upon review.

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Commissioner Marks, concurring in part and dissenting in part:

   With respect to the Secretary’s motion to strike, I concur with the disposition of the

majority to grant the motion.

   However, I find that the circumstances supporting Cannelton’s motions to remand and

reopen the record and stay review of these proceedings sufficiently demonstrate excusable neglect
under Fed. R. Civ. P. 60(b)(1). Accordingly, I would grant Cannelton’s motions.

                                          Marc Lincoln Marks, Commissioner




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