Strack Excavating, LLC

Plain-English summary

Strack Excavating's proposed penalty assessment became a final Commission order when no contest was filed within the 30-day deadline. The owner said a newly hired safety coordinator had assured him that she timely contested the assessment, but she did not do so and was later terminated. The Secretary did not oppose reopening and urged the company to prevent future late filings. The Commission applied principles of mistake, inadvertence, and excusable neglect, noting that default is a harsh remedy when good cause exists. It reopened the assessment in the interests of justice and remanded the matter for proceedings on the merits. The Secretary was directed to file a penalty petition within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded, with the Secretary ordered to file a penalty petition within 45 days.
• Key point: A missed contest caused by a responsible employee's mistaken assurance may justify reopening when the operator shows good cause and the Secretary does not object.

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

July 10, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

v.

STRACK EXCAVATING, LLC 

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Docket No. CENT 2012-213-M

A.C. No. 23-02231-268863

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 12, 2011, the Commission received from
Strack Excavating, LLC (“Strack”) a motion 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).

The record indicates that the proposed assessment was delivered on October 11, 2011,
and became a final order of the Commission on November 10, 2011. Strack asserts that its
newly-hired safety coordinator assured the owner that she timely contested the penalty
assessments, but did not do so. Strack’s owner states that the safety coordinator was terminated
on October 19, 2011. The Secretary does not oppose the request to reopen, and urges the
operator to take all steps necessary to ensure that future penalty contests are timely filed.

Having reviewed Strack’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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jo Wayne Strack, Owner

Strack Excavating, LLC

5120 State Hgwy. 74

Cape Girardeau, MO 63701

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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