Molloy Mining, Inc.

Plain-English summary

Molloy Mining contested six citations issued by the Secretary of Labor and later agreed to settle them. The judge’s settlement decision mistakenly listed three penalties as $295 each and set the total at $1,174, instead of $259 each and $1,066 total. The Commission reopened the final order under Rule 60(b) and corrected those clerical errors, while one commissioner would have remanded the matter to the judge. The amended settlement required Molloy Mining to pay $1,066.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 2700.1(b), 2700.69(b), 2700.70(a); 30 U.S.C. §§ 823(d)(1), 823(d)(2)
• Outcome: The final settlement order was reopened and modified to correct the penalty amounts and total payment.
• Key point: The Commission may reopen a final order to correct a clerical mistake incorporated into a settlement decision.

Full text (FMSHRC public release)

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

                                     March 8, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 99-111
: A.C. No. 46-08330-03511
MOLLOY MINING, INC. :

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

                                        ORDER

BY: Jordan, Chairman; Marks, Verheggen, and Beatty, Commissioners

    This civil penalty proceeding arises under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. 801 et seq. (1994) (“Mine Act”). On September 29, 1999, Administrative Law
Judge Michael Zielinski issued a Decision Approving Settlement granting a settlement motion
filed by the Secretary of Labor which involved civil penalties for six citations issued to Molloy
Mining, Inc. (“Molloy Mining”). The Secretary now requests the Commission to modify the
judge’s decision to correct certain clerical errors.

   On April 7, 1999, the Secretary issued six citations — Citation Nos. 7179500 through

7179505 — to Molloy Mining, alleging various violations of mandatory safety standards. S.
(Second) Amended Mot. to Approve Settlement at 1 (Jan. 4, 2000). On July 22, 1999, the
Secretary filed a Petition for Assessment of Penalties for the six citations and proposed
assessments of $259 each, or a total assessment of $1,554. Id. at 6. Molloy Mining filed its
answer to the Commission on July 29, 1999, denying any violation and contesting the Secretary’s
proposed penalties. Op. Answer to S. Petition for Assessment of Civil Penalty. On September
24, 1999, the Secretary filed a motion to approve a settlement agreement reached by the parties,
in which Molloy Mining agreed to pay a total of $1,066 for the six violations. S. Letter dated
Sept. 24, 1999. On September 27, the Secretary filed an amended motion to approve settlement
requesting correction of the settlement amount from $1,066 to $1,174. S. Letter dated Sept. 27,
1999. On September 29, the judge issued his decision approving the settlement and directing
Molloy Mining to pay $1,174. Unpublished Dec. dated Sept. 29, 1999. On January 4, 2000, the
Secretary filed a second amended motion to approve settlement, requesting correction of the
settlement amount back to the original total of $1,066. S. Letter dated Jan. 4, 2000. The
Secretary explained that the penalties associated with three citations — Citation Nos. 7179503,

                                    22 FMSHRC 292

Page 2

7179504, and 7179505 — were incorrectly set forth as $295 each, rather than $259, making the
correct total settlement amount $1,066, as originally provided in the Secretary’s first motion. Id.
The judge responded to the Secretary’s second amended motion with a letter stating that he no
longer had jurisdiction of the case because once he issued his decision on the matter, it became
final 40 days after its issuance. Letter from Judge Zielinski dated Jan. 10, 2000.

    The judge’s jurisdiction over this case terminated when his decision approving settlement

was issued on September 29, 1999. 29 C.F.R. § 2700.69(b). Relief from a judge’s decision may
be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C.
§ 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of
a decision’s issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1).
Molloy Mining’s motion was received by the Commission on January 6, 2000, almost two
months after the judge’s decision became final. Under these circumstances, we treat Molloy
Mining’s motion as a late-filed petition for discretionary review requesting amendment of a final
Commission decision. See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996).

    A final Commission judgment or order may be reopened under Fed. R. Civ. P. 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); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991). The Secretary erred in stating the penalty amount for three citations in her motion
to approve settlement, mistakenly listing the penalties associated with the citations as $295 each,
instead of the correct amount of $259, and setting forth an incorrect total settlement amount of
$1,174. The judge’s decision approving that settlement agreement incorporates those clerical
errors. The Secretary requests that the settlement decision be amended to reflect the correct
penalty amount of $259 for each of the three citations and a total settlement of $1,066. Here, the
clerical errors incorporated in the judge’s decision approving settlement amount to mistake under
Rule 60(b).

                                    22 FMSHRC 293

Page 3

    Accordingly, we reopen the final decision, and grant the Secretary’s motion to correct the

clerical errors set forth in the judge’s decision approving settlement.1 See General Chemical
Corp., 18 FMSHRC at 705 (amending judge’s dismissal order where the judge mistakenly left
out a citation in the caption and body of his order); Martin Marietta Aggregates, 16 FMSHRC
189, 190 (Feb. 1994) (amending judge’s decision approving settlement to reflect correct penalty
amount agreed to by the parties). On this date, we separately issue an amended decision
approving settlement consistent with this order.

                                         Mary Lu Jordan, Chairman




                                         Marc Lincoln Marks, Commissioner




                                         Theodore F. Verheggen, Commissioner




                                         Robert H. Beatty, Jr., Commissioner




   1
      Commissioner Riley concludes that, because the judge committed no error in this

matter, this case should be remanded to the judge to allow him to correct the Secretary’s clerical
error.

                                    22 FMSHRC 294

Page 4

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



                                    March 8, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 99-111
: A.C. No. 46-08330-03511
MOLLOY MINING, INC. :

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

                AMENDED DECISION APPROVING SETTLEMENT

BY: Jordan, Chairman; Marks, Verheggen, and Beatty, Commissioners

   The Secretary of Labor has filed an amended motion to approve settlement in this civil

penalty proceeding. The motion is unopposed. The motion having been considered, and good
cause appearing:

                                   22 FMSHRC 295

Page 5

    Wherefore, it is ordered that the Decision Approving Settlement issued September 29,

1999, be amended to reflect that the proposed penalty assessment for each of the six citations,
Citation Nos. 7179500 through 7179505, issued to Molloy Mining, Inc., is $259 and that the
parties agreed to settle Citation Nos. 7179503, 7179504, and 7179505 for $259 each, for a total
payment, by Molloy Mining, Inc., of $1,066.1

                                        Mary Lu Jordan, Chairman




                                        Marc Lincoln Marks, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner




   1
      In a separate order issued by the Commission on this date, Commissioner Riley

concluded that, because the judge committed no error, this case should be remanded to the judge
to allow him to correct the Secretary’s clerical error.

                                   22 FMSHRC 296

Page 6

Distribution

Vaughn R. Groves, Esq.
Pittston Legal Group
P.O. Box 7500
Lebanon, VA 24266

James P. Bowman
Conference & Litigation Representative
U.S. Department of Labor, MSHA
100 Bluestone Road
Mt. Hope, WV 25880

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                                 22 FMSHRC 297