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[DOCID: f:cannelor.wais]

 
CANNELTON INDUSTRIES, INC.
September 30, 1996
WEVA 94-381


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                        WASHINGTON, D.C. 20006


                          September 30, 1996

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
       v.                          :    Docket No. WEVA 94-381 
                                   :
CANNELTON INDUSTRIES, INC.         :
                                   :
SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
       v.                          :    Docket No. WEVA 95-100
                                   :
CHARLES PATTERSON, employed by     :
CANNELTON INDUSTRIES, INC.         :
                                   :
SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
       v.                          :    Docket No. WEVA 95-101
                                   :
GEORGE RICHARDSON, employed by     :
  CANNELTON INDUSTRIES, INC.       :


BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]


                                ORDER

BY:  Jordan, Chairman; and Riley, Commissioner

     These civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994) ("Mine
Act").  On April 29, 1996, Administrative Law Judge Todd Hodgdon
issued a decision in which he concluded that Cannelton Industries, Inc.
("Cannelton") violated 30 C.F.R.  75.400 by failing to clean up an
accumulation of coal under a conveyor belt, that the violation was
significant and substantial ("S&S") and the result of unwarrantable
failure, and that Charles Patterson and George Richardson, employed
by Cannelton, knowingly authorized the violation by failing to have
the accumulation cleaned up.  18 FMSHRC 651, 654-61 (April 1996) (ALJ).
The judge ordered Cannelton, Patterson, and Richardson to pay civil
penalties of $3,600, $500, and $500, respectively.  18 FMSHRC at 661-62.
The Commission granted the petition for discretionary review filed by
counsel for Cannelton, Patterson, and Richardson, challenging the
judge's determinations.

     On July 15, 1996, counsel for Cannelton, Patterson, and Richardson
filed a motion to remand and reopen the record and motion to stay review
proceedings.  Counsel explains that the movants' counsel at the hearing,
an inexperienced attorney within the same law firm, failed to present
certain relevant evidence because its existence "slipped his mind."  Mot.
at 5 & Att. B.  He asserts the failure to present the evidence was not the
result of culpable conduct by the movants and the evidence establishes a
defense that would have altered the outcome of the case had it been admitted.
Id. at 9.  Attached to the motion are photocopies of the evidence and the
affidavit of the hearing counsel.  Atts. A & B.  Counsel requests that,
pursuant to Fed. R. Civ. P. 60(b),[2] the Commission remand the matter to
the judge, order the record to be reopened for the taking of additional
evidence, and stay review proceedings pending the judge's decision on
remand.[3]  Mot. at 9-10.  He asserts that the Secretary of Labor would
not be prejudiced by the granting of the motion.  Id. at 9.[4] 

     On July 18, 1996, the Secretary filed an opposition to the motion
and a motion to strike.  He argues that the movants have not established
a basis for relief under Rule 60(b) and that he would be prejudiced by
the granting of relief and requests that the Commission deny the motion.
S. Opp. at 4-13.  In addition, the Secretary requests that the evidentiary
material attached to the motion and all references thereto be stricken
from the record because it was not properly introduced.  Id. at 13-14.

     On August 2, 1996, counsel for Cannelton, Patterson, and Richardson
filed an opposition to the Secretary's motion to strike.  Counsel argues
that submission of the evidentiary material is necessary to justify
reopening the record and requests that the Commission deny the motion
to strike.  C. Opp. at 3-5.  

     A final Commission judgment or order may be reopened under Rule
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).  Rule 60(b) motions are committed
to the sound discretion of the judicial tribunal in which relief is sought.
Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987), cert.
denied, 484 U.S. 1027 (1988).  Rule 60(b) is "the mechanism by which courts
temper the finality of judgments with the necessity to distribute justice"
and "is a tool which trial courts are to use sparingly. . . ."  Randall, 820
F.2d at 1322.  See also Tolbert v. Chaney Creek Coal Corp., 12 FMSHRC 615,
619 n.1 (April 1990).

     In Midwest Minerals, Inc., 12 FMSHRC 1375 (July 1990), the
Commission denied an operator's motion to remand and reopen the
record for the taking of additional evidence where its non-attorney
representative failed to introduce evidence relevant to its defense.
The Commission reasoned:

     Because the adequacy of a party's representation at hearing is 
     linked to the party's choice of its representative, we must look 
     askance at any request that Rule 60(b) relief be granted because the 
     party's chosen representative is claimed to have performed 
     ineffectually at the hearing before the judge resulting in an adverse 
     decision.  Routinely granting such relief would . . . unfairly 
     provide a losing party "a second turn at bat."

Id. at 1377.  Similarly, in this case, the attorney's failure to present
evidence at the hearing does not provide a basis for reopening the record.

     In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership,
507 U.S. 380 (1993), the Supreme Court reaffirmed the principle that
"clients must be held accountable for the acts and omissions of their
attorneys."  Id. at 396 (citing Link v. Wabash R.R., 370 U.S. 626, 633-34
(1962), United States v. Boyle, 469 U.S. 241 (1985)).  The Court further
explained that whether a party's neglect is excusable is an equitable
determination in which consideration should be given to "all relevant
circumstances surrounding the party's omission."  Id. at 395.  The Court
emphasized that the focus is upon the neglect of both the clients and
their counsel.  Id. at 397.  Here, counsel for Cannelton, Patterson, and
Richardson asserts that the movants had provided the evidentiary material
to the attorney, who was in possession of it during the hearing.  Mot. at
5 & Att. B.  Thus, knowledge of the evidentiary material can be charged
upon both the movants and their attorney. 

     We conclude that movants have not met the criteria for relief
under Rule 60(b).  Although it is unfortunate that the evidentiary
material "slipped the attorney's mind," the movants must be held
accountable for the failure of counsel.  Accordingly, we deny the
motion to remand and reopen the record and the motion to stay review
proceedings.

     With regard to the motion to strike, the Secretary points out
that the evidentiary material in question was not part of the record
before the judge and was not subject to cross-examination or rebuttal.
S. Opp. at 13.  He correctly asserts that the Commission's consideration
on review of this extra-record evidentiary material would contravene
section 113(d)(2)(C) of the Mine Act, 30 U.S.C.  823(d)(2)(C).[5]
S. Opp. at 13-14.  Therefore, we grant the motion to strike the evidentiary
material and references to it from the motion insofar as it addresses the
merits of the case.  See Midwest, 12 FMSHRC at 1377 n.3.

     Cannelton, Patterson, and Richardson are hereby ordered to
file opening briefs within 30 days of the date of this order.
Other briefs shall be filed in accordance with 29 C.F.R.  2700.75(a).


                                         Mary Lu Jordan, Chairman

                                         James C. Riley, Commissioner


Commissioner Marks, concurring in part and dissenting in part:

     With respect to the Secretary's motion to strike, I concur
with the disposition of the majority to grant the motion.

     However, I find that the circumstances supporting Cannelton's
motions to remand and reopen the record and stay review of these
proceedings sufficiently demonstrate excusable neglect under Fed. R.
Civ. P. 60(b)(1).  Accordingly, I would grant Cannelton's motions.


                                        Marc Lincoln Marks, Commissioner


     [1]  Commissioner Holen participated in the consideration of
this matter, but her term expired before issuance of this order.
Pursuant to section 113(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.  823(c), this panel of three Commissioners
has been designated to exercise the powers of the Commission.

     [2]  Rule 60(b) states, in part:

       On motion and upon such terms as are just, the court 
       may relieve a party or his legal representative from a final 
       judgment, order, or proceeding for the following reasons: (1) 
       mistake, inadvertence, surprise, or excusable neglect; . . . or 
       (6) any other reason justifying relief from the operation of the 
       judgment.

     [3]  Counsel also requests that briefing be stayed pending the
Commission's consideration of the motion.  Mot. at 3.  On July 17, 1996,
the Commission issued an order staying the filing of briefs until further
notice.

     [4]  On July 18, 1996, counsel filed a supplemental statement to the
motion, contending that the judge incorrectly stated the date on which the
citation was issued and that, in view of the correct date, the additional
evidence is relevant to whether Cannelton had notice of the accumulation.
Supp. Statement at 1.

     [5]  Section 113(d)(2)(C) states, in part:

       For the purpose of review by the Commission . . . the 
       record shall include: (i) all matters constituting the record 
       upon which the decision of the administrative law judge was 
       based; (ii) the rulings upon proposed findings and conclusions; 
       (iii) the decision of the administrative law judge; (iv) the 
       petition or petitions for discretionary review, responses 
       thereto, and the Commission's order for review; and (v) briefs 
       filed on review.  No other material shall be considered by the 
       Commission upon review.