.
BRIAN FORBES, EMPLOYED BY HAMILTON ROCK PRODUCTS
April 29, 1998
WEST 98-23-M

          FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET, N.W., 6TH FLOOR

                    WASHINGTON D.C.  20006-3868

                          April 29, 1998

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH     :
   ADMINISTRATION (MSHA),     :  Docket No. WEST 98-23-M
               Petitioner     :  A. C. No. 24-00500-05512-A
                              :
          v.                  :
                              :
BRIAN FORBES, EMPLOYED BY     :  Hamilton  Rock Production
    HAMILTON ROCK PRODUCTS,   :	 Pit & Plant
               Respondent     :

                  ORDER DENYING MOTION TO REOPEN

     This case is before me pursuant to an order of remand by the
Commission dated February 6, 1998.

     The petitioner, Brian D. Forbes, filed a motion with the
Commission to reopen a penalty assessment of the Mine Safety and
Health Administration (hereafter referred to as "MSHA") that had
become final by operation of law.  The Commission held that on the
basis of the record before it, a determination could not be made
on the merits of the motion.  Accordingly, the case was remanded
for a determination whether  petitioner met the requirements for
relief.

     On September 22, 1993, a citation was issued to petitioner's
employer, Maricorp, Inc., for a violation of 30 C.F.R.  57.14130
(g).  According to petitioner's affidavit, dated October 22, 1997,
the citation was served on petitioner who was the operator's
manager.  He forwarded the citation to the person designated by
the operator to represent it in such matters.

     On March 28, 1994, MSHA sent petitioner a letter by certified
mail advising him that he was subject to a proposed civil penalty
assessment under section 110(c) of the Act, 30 U.S.C.A.
 820(c).[1]  This letter was addressed to petitioner at Maricorp,
but he had left the employ of that company.  The letter was
returned with the notation on the envelope that he was no longer
there.

     Attached to an affidavit executed on December 9, 1997, by
Barbara Renowden, an MSHA supervisory investigator, is a
memorandum dated May 16, 1994 from Ms. Renowden to the
Administrator for Metal and Non Metal Safety and Health.  The
memorandum recites that after the March 28 letter was returned,
petitioner was contacted on his mobile phone and told that MSHA
was trying to reach him to advise that  he could have a conference
on the violation.  According to the memorandum, petitioner was
hostile and uncooperative.  On April 1, 1998,
Ms. Renowden executed a second affidavit stating that at the time
she wrote the memo of May 16, 1994, she knew 
the facts therein to be true and accurate,
but that she does not have a current recollection of who in her
office spoke to petitioner.  In an affidavit dated April 10, 1998,
petitioner states that prior to receiving a notice dated August 8,
1997, he had absolutely no knowledge that a citation had been
issued.

     The postmaster of Marion, Montana, in an affidavit dated
March 26, 1998, states that petitioner is a customer of the post
office and since 1982 has continuously rented a post office box
there.  According to the postmaster, the Postal Service places
Form 3849 in the postal box to notify the box customer of the
delivery of certified mail.  She further recites that up to three
notices may be provided before the Postal Service returns the
certified letter to the sender as "unclaimed" and the date of each
notice is written on the envelope.  Finally, the postmaster
advises that the Form 3849 stays in the box until the customer
picks it up and that even if the mail is returned to the sender,
the form still stays in the box.

     On April 26, 1994, MSHA sent petitioner a letter regarding a
proposed 110(c) penalty assessment by certified mail addressed to
his post office box in Marion, Montana.[2]  According to the
postmaster's affidavit, the first notice was placed in his box on
April 28, 1994, the second notice was placed there on May 4, 1994,
and the letter was returned to MSHA on May 12, 1994.

     On July 12, 1994, MSHA sent petitioner the notice of civil
penalty assessment by certified mail addressed to his post office
box.[3]  According to the postmaster's affidavit, the first
notification was placed in his box on July 25, 1994, the second
was placed there on August 5, 1994, and the letter was returned on
August 10, 1994.

     Thereafter, on June 20, 1995, MSHA sent petitioner a letter
by regular mail addressed to his post office box advising him that
legal action would commence against him, unless he made immediate
arrangements to satisfy the unpaid civil penalty.[4]  This letter
was not returned to MSHA.

     On September 27, 1995, MSHA sent petitioner a letter, by
certified mail addressed to his post office box, seeking payment
of the debt, giving the amount due including accrued interest, and
stating the continued nonpayment of the debt would result in
referral to the Internal Revenue Service.[5]  According to the
postmaster's affidavit, the first notice was placed in his box on
October 5, 1995, the second was placed there on October 11, 1995,
and the letter was returned on October 24, 1995.

     Another certified mail letter dated October 25, 1996, was
sent to petitioner at his post office box again seeking payment of
the debt, giving the amount due including accrued interest, and
stating that continued nonpayment would result in referral to the
Internal Revenue Service.[6]  According to the postmaster's
affidavit, the first notice was placed in his box on November 4,
1996, the second notice was placed there on November 8, 1996, and
the letter was returned on November 19, 1996.

     On August 8, 1997, the Department of the Treasury sent
petitioner a letter by regular mail advising him that MSHA had
referred the debt for collection and that aggressive legal action
would be commenced against him unless he made payment.[7]  On
September 4, 1997, petitioner telephoned the Civil Penalty
Compliance Division, Office of Assessments, in MSHA and requested
information regarding the civil penalty assessment and delinquent
debt.  On the next day relevant documents were sent to him.[8]
Petitioner's attorney then wrote MSHA and the Department of the
Treasury on September 10, 1997, seeking to contest the proposed
penalty assessment.[9]  However, he was informed by MSHA on
September 25, 1997, that the proposed assessment was final and
petitioner could file a motion for relief with this
Commission.[10]

     Pursuant to my order dated February 24, 1998, petitioner's
wife executed an affidavit dated April 10, 1998, wherein she avers
as follows:  she and Mr. Forbes have been married since 1974; they
have maintained a permanent residence in Marion, Montana since the
1970s; when her husband is out of town it is her practice to pick
up their mail at the post office; if Mr. Forbes receives letters
addressed just to him, it is her practice to forward such mail to
him at his current work site; she never opens mail addressed in
his name only; she has never signed for any certified or
registered mail because she is never certain how long it might
take before such mail is delivered to him at his work site; if
certified letters were returned to MSHA by the Post Office marked
unclaimed, it is because they were in her husband's name only; she
has never signed for or picked up any certified or registered
letters addressed to her husband; she has no recollection of ever
receiving or picking up any notice from the Department of Labor
except for the letter dated August 8, 1997, which she forwarded to
him at his work site.

     As already noted, petitioner also executed an affidavit on
April 10, 1998, wherein he alleges that before the August 8, 1997,
he had no notice that a citation had been issued and that he has
never wilfully or intentionally tried to avoid service.

     In the brief filed on petitioner's behalf, his counsel
represents the following:  petitioner's wife and son occupied
their home during the son's attendance at Flathead High School;
petitioner owned property, land and structures in Flathead County,
Montana; petitioner has vehicles registered in Montana, and
petitioner has paid the Montana personal property tax.  In
addition, attached to the brief is documentation showing that
petitioner worked outside Montana for these periods:  May 21,
1994, to June 4, 1994; June 13, 1994, to November 6, 1994;
August 18, 1995, to March 22, 1996; April 8, 1996, to December 4,
1997; and March 2, 1998 to the present.  These dates do not cover
the period from April 26, 1994, to May 12, 1994, when delivery of
the first notice addressed to his post office box, was attempted.
Also, the record, as presently constituted, does not indicate
whether petitioner returned home during these periods of
employment.

                          Applicable Law

     Section 110(c) of the Act, supra, provides as follows:

     Whenever a corporate operator violates a mandatory
     health or safety standard or knowingly violates or fails
     or refuses to comply with any order issued under this
     Act or any order incorporated in a final decision issued
     under this Act, except an order incorporated in a
     decision issued under subsection (a) or section 105(c),
     any director, officer, or agent of such corporation who
     knowingly authorized, ordered, or carried out such
     violation, failure, or refusal shall be subject to the
     same civil penalties, fines, and imprisonment that may
     be imposed upon a person under subsections (a) and (d).

     It is under section 110(c) that MSHA proposed a penalty
assessment against petitioner.

     Section 105(a) of the Act, 30 U.S.C.A.  815(a), provides in
pertinent part as follows:

     If, after an inspection or investigation, the Secretary
     issues a citation or order under section 104, he shall,
     within a reasonable time after the termination of such
     inspection or investigation, notify the operator by
     certified mail of the civil penalty proposed to be
     assessed under section 110(a) for the violation cited
     and that the operator has 30 days within which to notify
     the Secretary that he wishes to contest the citation or
     proposed assessment of penalty. * * *  If, within 30
     days from the receipt of the notification issued by the
     Secretary, the operator fails to notify the Secretary
     that he intends to contest the citation or the proposed
     assessment of penalty, * * * the citation and the
     proposed assessment of penalty shall be deemed a final
     order of the Commission and not subject to review by any
     court or agency.  Refusal by the operator or his agent
     to accept certified mail containing a citation and
     proposed assessment of penalty under this subsection
     shall constitute receipt thereof within the meaning of
     this subsection.

See also 30 C.F.R.  100.7; 29 C.F.R.   2700. 25, 2700.26 &
2700.27.

     It is pursuant to section 105(a) and the cited regulations
that MSHA argues the proposed penalty assessment against
petitioner has become final and is not subject to review.

     Rule 60(b) of the Federal Rules of Civil Procedure provides
as follows:

     On motion and upon such terms as are just, the court may
     relieve a party * * * from a final judgment, order, or
     proceeding for the following reasons:  (1) mistake,
     inadvertence, surprise, or excusable neglect; (2) newly
     discovered evidence which by due diligence could not
     have been discovered in time to move for a new trial
     under Rule 59(b); (3) fraud * * *, misrepresentation, or
     other misconduct of an adverse party; (4) the judgment
     is void; (5) the judgment has been satisfied, released,
     or discharged, or a prior judgment upon which it is
     based has been reversed or otherwise vacated, or it is
     no longer equitable that the judgment should have
     prospective application; or (6) any other reason
     justifying relief from the operation of the judgment.
     The motion shall be made within a reasonable time, and
     for reasons (1), (2), and (3) not more than one year
     after the judgment, order, or proceeding was entered or
     taken.

     It is under rule 60(b) that the Commission has held that it
has jurisdiction in appropriate cases to reopen penalty
assessments that have become final pursuant to section 105(a),
supra. Brian Forbes, Employed by Hamilton Rock Products, 20 FMSHRC
99, 100 (February 1998); Rocky Hollow Coal Co., 16 FMSHRC 1931,
1932 (September 1994); Jim Walter Resources, Inc., 15 FMSHRC 782,
786-89 (May 1993).

                     Discussion and Analysis

     For purposes of deciding petitioner's motion on the present
record, the representations and allegations made by him and his
wife will be accepted as true.[11]  The gravamen of petitioner's
case is that he did not receive actual notice of the penalty
assessment made against him.

     Petitioner's motion to reopen was not filed within one year
of the date the proposed penalty assessment became final pursuant
to section 105(a), supra.  Accordingly, the motion cannot be
considered under subparagraph (1) of Rule 60(b), supra, which
provides for relief in circumstances of excusable neglect when the
request is made within one year.  Pioneer Investment Services Co.
v. Brunswick Associates LTD. Partnership, 507 U.S. 380, 393
(1993).  Subparagraphs (2) through (5) do not apply.  Therefore,
the motion can only be considered under subparagraph(6), supra,
which states that a judgment may be reopened at any time for any
other reason justifying relief.  The Supreme Court has held that
subparagraphs (1) and (6) are mutually exclusive and that a party
who fails to take timely action due to "excusable neglect" may not
seek relief after more than a year later by resorting to
subparagraph(6).  Pioneer, at 393.  To justify relief under
subparagraph (6) a party must show "extraordinary circumstances",
suggesting that the party is faultless in the delay.  Ibid., See
also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
863-864 (1988); Ackermann v. United States, 340 U.S. 193, 197-200
(1950); Klapprott v. United States, 335 U.S. 601, 613-614 (1949).

      Bearing these principles in mind, we turn to petitioner's
request.  In Mullane v. Central Hanover B. & T. Co., 339 U.S. 306
(1950), the Supreme Court set forth the standards under which
adequacy of notice is judged, stating in pertinent part as
follows:

     An elementary and fundamental requirement of due process
     in any proceeding which is to be accorded finality is
     notice reasonably calculated, under all the
     circumstances, to apprise interested parties of the
     pendency of the action and afford them an opportunity to
     present their objections * * *  But if with due regard
     for the practicalities and peculiarities of the case
     these conditions are reasonably met, the constitutional
     requirements are satisfied.

Id. at 314-315.

     The Court further stated that the means employed must be such
as one desirous of actually informing the absentee might
reasonably adopt to accomplish notice and that the reasonableness
and hence constitutional validity of any chosen method may be
defended on the ground that it is in itself reasonably likely to
inform those affected.  Id. at 315.

     Mullane  has  been  the touchstone for the development  of  a
substantial body of law which  holds  that the appropriate inquiry
is  whether  or  not  the  method  used to effectuate  service  is
reasonably calculated under all the  circumstances  to apprise the
interested  party  of the pendency of the action.  Certified  mail
has  been held to satisfy  the  due  process  due  a  litigant  or
prospective  litigant.   Fuentes-Argueta  v. I.N.S., 101 F.3d 867,
872 (2nd Cir. 1996); U.S. v. Clark 84 F.3d  378,  381  (10th  Cir.
1996);  Sarit  v. U.S. Drug Enforcement Admin., 987 F.2d 10, 14-15
(1st Cir. 1993).   Moreover,  the  courts have repeatedly approved
the use of regular first-class mail as a constitutionally adequate
means of service.   In Re Blinder, Robinson  & Co., Inc., 124 F.3d
1238, 1243 (10th Cir. 1997); Weigner v. City of New York, 852 F.2d
646, 650 (2nd 1988).  Even more importantly, the  courts recognize
that  due  process  does  not  require  that the interested  party
actually receive notice.  In Re Blinder,  Robinson  &  Co.,  Inc.,
supra  at  1243;  Fuentes-Argueta v. I.N.S., supra at 872; U.S. v.
Clark, supra at 381;  Katzson  Bros., Inc. v. U.S.E.P.A., 839 F.2d
1396, 1400 (10th Cir. 1988); Weigner v. City of New York, supra at
650; Stateside Machinery Co., Ltd  v.  Alperin,  591 F.2d 234, 241
(1979).   An  individual  who moves and does not provide  his  new
address, cannot challenge service  by certified or regular mail on
the basis there was no actual notice.   Fuentes-Argueta v. I.N.S.,
supra  at  872;  U.S.  v. Perez-Valdera, 899  F.  Supp.  181,  184
(S.D.N.Y. 1995); U.S. v.  Estrada-Trochez,  66  F.3d 733, 735 (5th
Cir. 1995).  An exception to the foregoing principles is made only
when  the  notifying party sends the notice to an address  it  has
reason to know  will  not  accomplish  notice.  Small v. U.S., 136
F.3d 1334, 1336-1337 (D.C. Cir. 1998); U.S.  v.  Rodgers, 108 F.3d
1247, 1253 (10th Cir. 1997); Torres v. $36,256.80 U.S. Currency,25
F.3d 1154, 1161 (2nd Cir. 1994); Aero-Medical, Inc.  v.  U.S.,  23
F.3d 328, 330-331 (10th Cir. 1994).
     It is clear that under these principles, petitioner's claim
fails.  Over a 2 year period MSHA sent four notices by certified
mail to petitioner at the post office box which he had maintained
for many years and which was located in the town of his permanent
residence.  These mailings satisfy due process under the Mullane
decision, because they were reasonably calculated under all the
circumstances to tell the petitioner of the penalty assessment
against him.  Indeed, it can fairly be said that the repeated
certified mailings addressed to the petitioner at the post office
box he continually maintained in the town where his permanent home
was located, constituted the means best calculated to reach him.
The claim for relief is based upon the absence of actual notice.
However, the case law set forth supra, demonstrates that actual
notice is not necessary where, as here, the method of notification
was reasonably calculated to advise the individual.  Finally,
petitioner has only himself to blame for his lack of actual
notice.  Even accepting the questionable statements and arguments
made on his behalf, it is clear that the petitioner is at fault
for failing to furnish a forwarding address or otherwise provide
for his receipt of all mail sent to him.  Indeed, any rational
evaluation of the practices and procedures adopted by petitioner
and his wife leads to the inescapable conclusion that their modus
operandi would defeat virtually any attempt to achieve actual
notice by certified mail.

     In addition, petitioner is not entitled to relief under Rule
60(b)(6).  As set forth supra, relief is available under
extraordinary circumstances suggesting that the movant is without
fault.  Pioneer, at 393.  There are no such extraordinary
circumstances here.  On the contrary, petitioner's own
arrangements for his mail are responsible for the defeat of all
attempts to notify him by certified mail.

     I recognize that the Commission has held that default is a
harsh remedy.  Kentucky Stone, 19 FMSHRC 1621, 1622 (October
1997); Peabody Coal Company, 19 FMSHRC 1613, 1614 (October 1997);
Jim Walter Resources, 19 FMSHRC 991, 992 (June 1997); See Coal
Preparation Services, Inc., 17 FMSHRC 1529, 1530 (September 1995).
Following the Commission's teachings, I have reopened many cases.
M & Y Services, Inc., Docket No. PENN 97-93-M, Unpublished Order
dated April 8, 1997; Eastern Associated Coal Corp., Docket No.
WEVA 97-81, Unpublished Order dated March 24, 1997; Del Rio, Inc.,
Docket No. KENT 97-138, Unpublished Order dated March 12, 1997; R
B Coal Company, 17 FMSHRC 2153 (November 1995).  But the
Commission has never decided that defaults are never to be imposed
and has itself denied reopening in appropriate cases.  Lakeview
Rock Products, Inc., 19 FMSHRC 26 (January 1997); Thomas Hale,
Employed by Damon Corp., 17 FMSHRC 1815 (November 1995); Jim
Walter Resources, Inc., 15 FMSHRC at 789-791.  Relief is to be
accorded in those instances where it is available under
substantive legal principles and the Federal Rules.  Where such
relief is not warranted, the Secretary's right to finality
must prevail.  If ever a case justified a finding of finality,
the instant one does. As already set forth, MSHA attempted many
times to notify petitioner and petitioner himself was to blame 
for the fact that these attempts were unsuccessful.

     In light of the foregoing, it is ORDERED that the motion to
reopen is DENIED.

                              Paul Merlin
                              Chief Administrative Law Judge

Distribution: (Certified Mail)

Ned Fitch, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203

John M. Miller, Esq., Eide & Miller, 425 G Street, Suite 930,
Anchorage, AK 99501

/gl

**FOOTNOTES**

     [1]:Attachments  A  and  B  to affidavit dated 12/11/97 of C.
Bryan  Don,  Chief  of  Penalty  Compliance   Office,   Office  of
Assessments, MSHA.

     [2]: Attachments C and D to Don affidavit.

     [3]: Attachments E and F to Don affidavit.

     [4]: Attachment G to Don affidavit.

     [5]: Attachments H and I to Don affidavit.

     [6]: Attachments J and K to Don affidavit.

     [7]: Attachment L to Don affidavit.

     [8]: Attachment M to Don affidavit.

     [9]: Attachment N to Don affidavit.

     [10]: Attachment O to Don affidavit.

     [11]: This does not mean, of course, that the petitioner's
statements and those of his wife  would  not  present serious
questions  of  credibility,  were they not being accepted  as
true for purposes of the motion.   For instance, petitioner's
wife avers that she forwarded regular mail to petitioner, but
that she did not sign for certified  mail  addressed  to  him
because  she  was  not  certain how long it would take before
such mail was delivered to  him  at his work site.  Any worry
about delivery time would apply to  regular  mail  as well as
certified mail and she admittedly forwarded regular  mail  to
him.  Also, concern about delivery time would not be lessened
by  refusing the mail.  On the contrary, refusal insured that
the mail  would  not be received.  And no reason is given why
petitioner's wife  did  not  open  any mail addressed to him,
regardless of where the mail came from  and  despite the fact
they  have  been  married  over  20 years.  In assessing  the
validity  of  the  allegation  that  she   did  not  remember
receiving or picking up any notice from MSHA,  account  would
have  to  be taken of the postmaster's statement that notices
of certified mail are left in the post office box even when a
letter  is  returned.    Eight  such  notices  were  left  in
petitioner's box, but his  wife  states she does not remember
any  of   them.   In  short,  the  statements   made  on  the
petitioner's   behalf   would  raise  serious  questions   of
credibility if a determination  of  their  truthfulness  were
necessary  to  a  resolution of this matter.  In addition, as
already  noted,  petitioner   has   not   accounted  for  his
whereabouts  when  attempts  were made to deliver  the  first
notice addressed to him at his post office box.