Harvey Trucking

Plain-English summary

Harvey Trucking asked the Commission to reopen a $2,000 penalty assessment after it learned of the final order, saying it had not received the penalty proposals that were sent to its address and returned to the sender. The Commission held that it could reopen an uncontested assessment in appropriate circumstances under Federal Rule of Civil Procedure 60(b), but the existing record did not show whether Harvey Trucking maintained the correct address with MSHA or whether MSHA sent the proposals to the submitted address. The majority remanded the matter to a judge to decide whether Harvey Trucking qualified for relief and, if so, to allow the case to proceed. Two commissioners would have reopened the matter immediately because the penalty proposals apparently were not received.

Decision snapshot

• Governing authorities: 30 U.S.C. § 815(a); Fed. R. Civ. P. 60(b)
• Outcome: The request to reopen was remanded for a judge to determine whether Rule 60(b) relief was warranted.
• Key point: A final penalty assessment may be reopened when the record supports possible relief from a failure to receive the assessment, but the judge must first resolve the relevant facts.

Full text (FMSHRC public release)

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

                                      June 11, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 99-87
: A.C. No. 46-08589-03502
HARVEY TRUCKING :

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 March 25, 1997, the Commission received from
Harvey Trucking 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 Harvey Trucking.

   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).

     Harvey Trucking asserts that it first learned of the order against it when it "received a

final order for $2,000.00" Mot. Upon subsequent investigation, the operator was informed that
two notices had been sent to the operator's address, but had been returned to sender after 10 days.
Id. It is unclear from the record why service upon Harvey Trucking was unsuccessful, and why
the operator did not receive the proposed penalty assessment. Harvey Trucking requests the

                                     21 FMSHRC 567

   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). See, e.g., Gary Klinefelter, 19 FMSHRC 827, 828 (May 1997) (remanding for
determination of whether relief from final order warranted where unclear why subject of section
110(c) investigation 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). 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); Stillwater Mining
Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co., 18 FMSHRC
1590, 1591-92 (Sept. 1996).

                                    21 FMSHRC 568

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

Trucking's position.1 In the interest of justice, we remand the matter for assignment to a judge to
determine whether Harvey Trucking has met the criteria for relief under Rule 60(b). 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



   1
      Unlike our dissenting colleagues (slip op. at 4), we find this case to be distinguishable

from Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998). In Richardson, the Commission
concluded that an individual did not "receive" the Secretary's penalty proposal within the
meaning of section 105(a) of the Act under circumstances in which the penalty proposal was sent to
Richardson's former address and Richardson was not required to inform the Department of Labor,
Mine Safety and Health Administration ("MSHA"), of his change of address under 30 C.F.R.
§ 41.12. Id. at 1260. In contrast, Harvey Trucking is required to inform MSHA of any change of
address under section 41.12. The Commission has previously denied an operator's request to
reopen a final order where the operator failed in that responsibility. Pit, 16 FMSHRC 2033, 2034
(Oct. 1994). Here, we are unable to evaluate from the record whether Harvey Trucking maintained
its correct address with MSHA or whether MSHA mailed the Secretary's penalty proposal to the
address submitted by Harvey Trucking pursuant to section 41.12.

                                    21 FMSHRC 569

Commissioners Marks and Verheggen, dissenting:

   Harvey Trucking has alleged that it never received any penalty proposals. An MSHA

representative also apparently stated that two proposals were mailed to Harvey Trucking, but
were both returned to MSHA. The Secretary has not disputed any of the facts set forth in Harvey
Trucking's motion, and, in fact, does not oppose the motion.

    We conclude that Harvey Trucking did not "receive" the Secretary's penalty proposal

within the meaning of section 105(a) of the Mine Act and the Commission's Procedural Rules
before he received the final order. Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998).
Under these circumstances, remanding this matter to the judge for considering whether Harvey
Trucking has met the criteria for relief under Rule 60(b) is not necessary. We would reopen the
matter, and remand it for assignment to a judge so that the case could 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




                                   21 FMSHRC 570

Distribution

Jesse Harvey
Harvey Trucking
P.O. Box 1646
Route 10
Oceana, WV 24870

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

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 571