Rock Products

JUN 2019

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Page 58 of 91 ROCKproducts • June 2019 • 57 LAW (6) any other reason that justifies relief. However, FRCP 60(c) also provides that such a motion "must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the entry of the judgment …." The Commission normally uses the mistake-excusable neglect justification to reopen orders and citations, but for Sims, that would violate FRCP 60(c) because Sims filed the Motion to Reopen 14 months after the Order was final. The Order could only be reopened under the catch-all "any other reason that justifies relief." The Commission rarely invokes the catch-all exception, and only when there are "extraordi- nary circumstances" present. The Commission concluded that Sims had faced extraordi- nary circumstances, but it was not unanimous. The majority decided that Sims' pre-hearing updates stating it wanted to contest the Order and MSHA's confirmation that the Order was in dispute, supported a finding of extraordinary circumstances. One commissioner dissented, arguing that re-opening the Order served no purpose, because it had already been ter- minated and carried no penalty. The majority disagreed, and for good reason. Elevated enforcement actions have purposes and conse- quences beyond monetary penalties. The majority noted that § 107(a) violations are one of the factors in Pattern of Violations determinations, but there are other concerns too. Publicly traded companies must report elevated enforcement actions in their SEC filings. Elevated enforcement actions can have adverse effects on supervisor performance reviews, and promotion prospects. Hence, an operator's ability to chal- lenge the merits of an enforcement action serves a useful purpose. When the re-opened Order was put back in front of the judge, he ruled that the Order was improper. Sims Crane won on the merits. What's the moral to the story? • There are unique deadlines to challenge specific enforce- ment actions. • When you communicate with the judge, be clear in what you are seeking. •  If you are not positive that one of your arguments has been raised to the judge, ask. • Legal ambiguities are like fish in the refrigerator – they don't get better with age. Heavy Duty Slurry Pumps, it's all we do! +1 (904) 356-6840 High quality parts, repairs, and pumps. Contact our engineering team to solve your slurry pumping needs. Proudly Pumping Since 1975 / Jacksonville, Florida

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