Unique Mining, Inc.

Plain-English summary

Unique Mining asked the Commission to reopen four penalty assessments totaling $200,000 after an accounting firm misfiled the hearing request. The company said it had timely contested the underlying citation and orders, but the green card for the proposed penalties had been attached to an unrelated green card and was not visible. The Secretary did not oppose the request. The Commission majority found that Unique intended to contest the penalties and granted relief under Rule 60(b)(1), while Commissioner Beatty would have remanded the matter for a judge to decide whether relief was appropriate.

Decision snapshot

• Governing authority: 30 U.S.C. § 814(d)(1), 30 U.S.C. § 815(a), 29 C.F.R. § 2700.1(b)
• Outcome: The Commission reopened the four penalty assessments so the case could proceed under the Mine Act and Commission rules.
• Key point: An internal filing error may qualify as inadvertence or mistake supporting relief from a final penalty assessment when the operator intended to contest it.

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, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 99-90
: A.C. No. 46-08702-03507
UNIQUE MINING, INC. :

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

                                          ORDER

BY: Jordan, Chairman; Marks, Riley, and Verheggen, 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 14, 1999, the Commission received from Unique
Mining, Inc. ("Unique") a request to reopen four penalty assessments, totaling $200,000, that had
become final orders 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 Unique.

   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 motion, Unique contends that its failure to timely file a hearing request to contest

the proposed penalties ("green card") was due to a misfiling by its accounting firm. Mot. at 2.
Unique explains that the proposed penalties were related to one citation (Citation No. 7160503)
and three orders (Order Nos. 7160505, 4203791, and 4203792) issued to it pursuant to section
104(d)(1) of the Act, 30 U.S.C. § 814(d)(1). Id. at 1. Unique states that it timely filed notices of
contest of the underlying citation and orders, and that the contest proceedings were stayed
pending the initiation of the associated civil penalty proceedings. Id. It submits that on May 3,

                                     21 FMSHRC 602

Page 2

1999, the Department of Labor's Mine Safety and Health Administration ("MSHA") contacted
Unique's counsel, and informed her that the proposed penalties had not been paid or contested.
Id. at 2. Unique contacted its accounting firm, which is responsible for picking up and sorting
Unique's mail. Id. at 1-2. Unique states that its accounting firm discovered that the proposed
penalties had not been entered into its computer system and that the missing green card had
mistakenly been attached to an unrelated green card and, therefore, was not visible. Id. at 2.
Attached to the motion are affidavits by the office manager of Unique's accounting firm and
Unique's president, and a copy of the subject green card. Exs. A, B, C.

    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 Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); RB Coal Co., 17
FMSHRC 1110, 1111 (July 1995).

    Here, the record indicates that Unique intended to contest the penalties associated with

Citation No.7160503 and Order Nos. 7160505, 4203791, and 4203792 and that, but for the
misfiling by its accounting firm, it would have timely submitted the hearing request and
contested the proposed penalty assessments. In these circumstances, Unique's failure to timely
file a hearing request reasonably may be found to qualify as "inadvertence" or "mistake" within
the meaning of Rule 60(b)(1). See Kenamerican Resources, Inc., 20 FMSHRC 199, 200-01
(Mar. 1998) (reopening proceedings when green card was not timely filed due to operator's
internal processing error).

                                    21 FMSHRC 603

Page 3

   Accordingly, in the interest of justice, we grant Unique's unopposed request for relief and

reopen the penalty assessments that became final orders with respect to Citation No.7160503 and
Order Nos. 7160505, 4203791, and 4203792. 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




                                         Marc Lincoln Marks, Commissioner




                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner



                                    21 FMSHRC 604

Page 4

Commissioner Beatty, dissenting:

     On the basis of the present record, I am unable to evaluate the merits of Unique's position

and would remand the matter for assignment to a judge to determine whether Unique has met the
criteria for relief under Rule 60(b). See Benton County Stone, Inc., 21 FMSHRC 5, 7 (Jan. 1999)
(remanding final order when operator misfiled green card).

                                          Robert H. Beatty, Jr., Commissioner




                                     21 FMSHRC 605

Page 5

Distribution

Mark E. Heath, Esq.
Heenan, Althen & Roles
P.O. Box 2549
Charleston, WV 25329-2549

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

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

                               21 FMSHRC 606