Baker Slate, Inc. (Commission decision, August 22, 2001)

Plain-English summary

Baker Slate failed to submit a timely hearing request after receiving a proposed penalty assessment, so the assessment became a final Commission order. The company said it first tried to reach an MSHA official. It then declined to send a note and documents as MSHA suggested because it feared they might be lost, and obtained an attorney's help. The Commission could not decide from the existing record whether those circumstances justified reopening the final order under Rule 60(b). It remanded the matter to a judge to determine whether relief was appropriate. Two commissioners would have granted relief themselves, but joined the remand to avoid an evenly divided decision.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The request to reopen the final penalty assessment was remanded for a judge's determination under Rule 60(b).
• Key point: A missed penalty-contest deadline may be addressed through reopening when the operator can show adequate cause, mistake, or inadvertence.

Full text (FMSHRC public release)

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

August 22, 2001

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
:
v. : Docket No. YORK 2001-61-M
:
BAKER SLATE, INC.
:

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

ORDER

BY: Jordan 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 May 29, 2001, the Commission received from Baker Slate, Inc. (“Baker Slate”) 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).

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 this case, Baker Slate did not timely submit its request for a hearing to the Department of Labor’s Mine Safety and Health Administration (“MSHA”). In its pro se motion, it states that it was advised by others in the slate industry to first contact Donald Corp of MSHA regarding the matter. Mot. It asserts that when it finally contacted him, after three weeks of attempting to do so, Corp said that he was no longer handling the matter and advised Baker Slate to call the MSHA telephone number printed on the proposed assessment. Id. Baker Slate contends that it called the MSHA number and was told to send a note and other documents to MSHA. Id. It

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asserts that it did not do so because it was concerned that the documents might become lost. Id. It further asserts that, after a few days, it contacted an attorney who sent a letter to MSHA requesting a hearing on its behalf. Id. MSHA responded to the letter on May 17, 2001, informing Baker Slate that its hearing request was untimely and that the order had become final on April 21, 2001. Baker Slate requests that the Commission reopen this matter. Id.

We have held that, in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994). 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 Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has found guidance in, and has applied “so far as practicable,” Fed. R. Civ. P. 60(b). 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. In accordance with Rule 60(b)(1), we previously have afforded a party relief from a final order of the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).

On the basis of the present record, we are unable to evaluate the merits of Baker Slate’s position. In the interest of justice, we remand the matter for assignment to a judge to determine whether relief from the final order is appropriate. See Dean Heyward Addison, 19 FMSHRC 681, 682-83 (Apr. 1997) (remanding to judge to determine whether asserted lack of familiarity with Commission procedures met criteria for relief under Rule 60(b)); Peabody Coal Co., 16 FMSHRC 2030, 2030-31 (Oct. 1994) (remanding to judge where failure to timely submit a hearing request was allegedly due to operator’s confusion about Commission procedures). 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, Commissioner

Robert H. Beatty, Jr., Commissioner

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Chairman Verheggen and Commissioner Riley, concurring in result:

We would grant the operator’s request for relief here, because the Secretary does not oppose the motion for relief, the operator has offered a sufficient explanation for its failure to timely respond, and no other circumstances exist that would render such a grant problematic. However, in order to avoid the effect of an evenly divided decision, we join in remanding the case to allow the judge to consider whether the operator has met the criteria for relief under Rule 60(b). See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing that the effect of a split Commission decision is to leave standing disposition from which appeal has been sought).

Theodore F. Verheggen, Chairman

James C. Riley, Commissioner

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Distribution

John R. Winn, Esq.
13 North Street
Granville, NY 12832

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

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

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