Leclaire Investments, Inc. (Commission decision, May 2, 2012)

Plain-English summary

Leclaire Investments said it timely contested a penalty assessment and paid the uncontested penalties, but MSHA had no record of receiving the contest. The record did confirm timely payment for the uncontested items. Leclaire moved to reopen less than 30 days after learning of the problem from a delinquency notice, and the Secretary did not oppose. In the interests of justice, the Commission reopened the final assessment, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a) and 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded for penalty proceedings.
• Key point: Timely payment of uncontested penalties and a prompt reopening motion can support relief when MSHA has no record of the related contest.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 2, 2012

SECRETARY OF LABOR,                                

MINE SAFETY AND HEALTH                       

ADMINISTRATION (MSHA)    

v.

LECLAIRE INVESTMENTS, INC. 

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Docket No. CENT 2012-41-M

A.C. No. 13-01999-260052

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 October 17, 2011, the Commission received from LeClaire Investments, Inc. (“LeClaire”) 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 July 12, 2011, and became a final order of the Commission on August 11, 2011. LeClaire asserts that it was not aware the assessment was not timely contested until it received MSHA’s delinquency notice on September 30, 2011. LeClaire further states that it timely contested the assessment on July 21, 2011, and paid the uncontested penalties. The Secretary does not oppose the request to reopen, but notes that there is no record of MSHA receiving a contest of this proposed assessment. The record does show that MSHA received a timely payment for the uncontested penalties, by check dated August 4, 2011.

In considering an operator’s request to reopen a final Commission order we find relevant the amount of time that has passed between the date the operator first learned the penalty was not timely contested and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 10-11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009). Here, LeClaire filed its motion to reopen on October 12, 2011, less than 30 days after receiving MSHA’s delinquency notice, on September 30, 2011.

Having reviewed LeClaire’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:

Michael Mudd

Leclaire Investments Safety Engineer

1701- 5th Avenue

Moline, IL 61265

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