L.G. Everist, Inc. (Commission decision, November 13, 2007)

Plain-English summary

L.G. Everist had already filed separate contests for six of eight citations and intended to contest their later penalty assessments. It marked those six items on the assessment form and sent payment for the other two, but mistakenly omitted the marked form from the mailing. MSHA then applied the partial payment to two citations Everist meant to contest, and the Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to determine whether the omission established good cause and justified relief from the final orders.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The six penalty assessments were remanded for a good-cause and reopening determination.
• Key point: Existing citation contests and a partial payment can corroborate intent, but the operator must still establish good cause for failing to return the assessment form.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 13, 2007

SECRETARY OF LABOR,                           : 

MINE SAFETY AND HEALTH                  :

ADMINISTRATION (MSHA)                    :                  Docket No. CENT 2008-21-M

:                  A.C. No. 39-01477-106913

v.                                            :                  

:

L.G. EVERIST, INC.                                     :                  

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (“Mine Act”). On October 10, 2007, the Commission received from

L.G. Everist, Inc. (“Everist”) a letter seeking to reopen penalty assessments that had become final orders 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 who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. 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).

On October 18, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued eight citations to Everist. Everist filed contests of six of the subject citations at issue, which are currently pending before Administrative Law Judge Richard Manning (Docket Nos. CENT 2007-054-RM, CENT 2007-055-RM, CENT 2007-056-RM, CENT 2007-057-RM, CENT 2007-058-RM, CENT 2007-059-RM). Subsequently, MSHA issued a proposed penalty assessment to Everist, covering the eight citations.

In its letter, Everist states that upon receiving
the proposed assessment, it checked the six citations that it had intended to contest and remitted a check for the two citations that did not wish to contest. Everist further asserts that it mistakenly failed to send the proposed assessment form to MSHA with the payment. Everist additionally submits that MSHA applied the partial payment to two of the citations that it had intended to contest. In response, the Secretary states that she does not oppose reopening the proposed penalty assessments.

We have held that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a 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).

Having reviewed Everist’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Everist’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined 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.

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

______

Michael G. Young, Commissioner

Distribution:

Dan Kuper

L. G. Everist, Inc.

24603 Quarry Road

Dell Rapids, SD 57022

W. Christian Schumann, Esq.

U.S. Department of Labor

Office of the Solicitor

1100 Wilson Boulevard, 22nd Floor

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance , MSHA

U.S. Department of Labor

1100 Wilson Boulevard, 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, N.W. Suite 9500

Washington, D.C. 20001