Secretary of Labor v. Wendling Quarries, Inc. (Commission decision, April 27, 2010)

Plain-English summary

Wendling Quarries had already filed a contest of Citation No. 6494021 when MSHA later issued the proposed penalty assessment. The company did not realize that it also needed to contest the penalty, did not forward the assessment to counsel, and its accounting office paid the assessment because the same form included an uncontested citation. Wendling discovered the mistake while consulting counsel about a related case and moved to reopen that same day. The Secretary did not oppose relief. The Commission reopened the assessment, remanded the matter, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The paid penalty assessment was reopened and remanded for further proceedings.
• Key point: Contesting a citation does not automatically contest its later penalty, but prompt correction of that mistake may support reopening.

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

April 27, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

WENDLING QUARRIES, INC.

:

:

Docket No. CENT 2009-743-M

A.C. No. 13-02062-183095 K038

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 August 18, 2009, the Commission received from Wendling Quarries, Inc. (“Wendling”) a motion by counsel 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).

On March 4, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Citation No. 6494021. Wendling filed a notice of contest challenging the citation on March 14, 2009 (Docket No. CENT 2009-338-RM). MSHA issued the proposed assessment covering that citation on April 22, 2009. Wendling claims that, because of its prior contest of the underlying citation, it was unaware that it needed to send in the penalty contest and it did not forward the proposed penalty assessment to its counsel. It further asserts that its accounting office mistakenly paid the penalty because the proposed assessment form included the penalty for another citation which had not been contested. Wendling asserts that it discovered that the penalty had been paid and not contested when it consulted its counsel about a related Mine Act proceeding on August 18, 2009. Counsel submitted the motion to reopen on that same day.

Although the Secretary does not oppose the motion to reopen, she urges the operator to take all steps necessary to ensure that future penalty assessments are contested in a timely manner.

Having reviewed Wendling’s request and the Secretary’s response, in the interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

______

Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

______

Michael G. Young, Commissioner    

______

Robert F. Cohen, Jr., Commissioner

Distribution:

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296 

Jerry Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

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