Secretary of Labor v. Higgins Stone Company, Inc. (Commission decision, January 20, 2010)

Plain-English summary

Higgins Stone said a proposed assessment was lost when the company moved its office to another city. It did not state when the move occurred, explain how the assessment had been handled, or identify which of the 16 violations it wanted to contest. The Secretary did not oppose reopening but urged the operator to improve its assessment-processing and address procedures. The Commission held that a reopening request must give known dates, identify involved people, explain both the missed deadline and later delay, and specify the citations at issue. It denied the request without prejudice so Higgins could submit a supported application.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The reopening request was denied without prejudice.
• Key point: A claimed office-move loss must be supported with dates, responsible persons, handling details, and the specific citations the operator seeks to contest.

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

January 20, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

HIGGINS STONE COMPANY, INC.

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Docket No. CENT 2009-179-M

A.C. No. 14-01650-156893

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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. (2006) (“Mine Act”). On December 29, 2008, the Commission received from Higgins Stone Company (“Higgins”) a letter seeking 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 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).

We have held, however, 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 mistake, inadvertence, or excusable neglect. 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).

In its letter, Higgins asserts that the proposed assessment was lost when it moved its office to a new city. However, Higgins does not indicate when the move took place or provide any details regarding its handling of the proposed assessment. In addition, Higgins does not indicate which of the 16 violations contained in the assessment it seeks to contest.

The Secretary states that although she does not oppose the reopening of the proposed penalty assessment, she urges that Higgins take all “steps necessary to ensure that future penalty assessments it wishes to contest are processed in a timely manner,” including ensuring that “the operator’s address of record is accurate for any future notification of proposed assessments.”

Having reviewed Higgins’ request and the Secretary’s response, we conclude that Higgins has failed to provide an adequate basis for the Commission to reopen the proposed penalty assessment. Higgins has failed to substantiate its proferred justification for its delays in responding to the proposed assessment and does not specify which violations it wishes to contest. An operator seeking to reopen a proceeding after a final order is effective bears the burden of establishing an entitlement to extraordinary relief. At a minimum, the applicant for such relief must provide all known details, including relevant dates and persons involved, and a clear explanation that accounts, to the best of the operator’s knowledge, for the failure to submit a timely response and for any delays in seeking relief once the operator became aware of the delinquency or failure. The operator must also identify which specific citations or orders in the assessment it wishes to contest upon reopening. Affidavits from persons involved in and knowledgeable of the situation and pertinent documents should be included with the request to reopen.

Accordingly, we hereby deny without prejudice Higgin’s request. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that Higgins may submit another request to reopen the assessment so that it can contest the penalty assessment.

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Mary Lu Jordan, Chairman

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Michael F. Duffy, Commissioner

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Michael G. Young, Commissioner    

Robert F. Cohen, Jr., Commissioner

Distribution:

Angie S. Fair/Michael Higgins

Higgins Stone Co., Inc.

407 Miller Dr.

Wamego, KY 66547

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021