Secretary of Labor v. L & W Quarries, Inc. (Commission decision, June 27, 2013)

Plain-English summary

L & W Quarries paid a final penalty assessment but later asked the Commission to reopen it after MSHA proposed individual penalties against two employees. The company wanted to ensure that its payment would not be treated as an admission by the employees in later section 110(c) litigation. The Secretary stated that he would not argue that the company's payment prevented the employees from contesting any part of the underlying violations. The Commission concluded that leaving the company assessment closed would not prejudice the individual proceedings. It therefore denied the motion to reopen.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(a) and 820(c); 29 C.F.R. § 2700.1(b)
• Outcome: The motion to reopen the final company assessment was denied.
• Key point: Payment of a company assessment did not bar individual agents from litigating the underlying violations when the Secretary expressly disclaimed that argument.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

June 27, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

L & W QUARRIES,
INC..
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Docket No. CENT
2013-162-M
A.C. No. 13-02138-293342

BEFORE: Jordan, Chairman;
Young 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 5, 2012, the Commission received from L & W Quarries, Inc. (“L&W”) 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 Department of Labor’s Mine
Safety and Health Administration’s (“MSHA”) records indicate that the proposed assessment was delivered on July 10, 2012, and became a final order of the Commission on August 9, 2012. L&W asserts that it paid the proposed penalties in the erroneous belief that payment would end any litigation arising from the alleged violations. In his affidavit, L&W’s general manager contends that a significant factor in his decision to timely pay the citations was that MSHA had not issued any penalties against individuals employed by L&W under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). Because MSHA sent proposed assessments to two individuals on July 17, 2012, L&W seeks to reopen this matter to ensure that payment will not constitute an admission of wrongdoing on the part of the company or its agents.

The
Secretary opposes the request to reopen, noting that the operator’s concerns are unfounded. The Secretary assures the operator that if the section 110(c) assessments proceed to litigation, he will not argue that L&W’s payment estops its agents from litigating any aspect of the underlying violations. Moreover, the Secretary established that the payment in this case was postmarked on November 7, 2012, three months after the proposed assessment became a final order, and almost four months after the individual assessments were issued.

Having reviewed L&W’s request and the Secretary’s response, we conclude that the outcome of the matter before us will not prejudice any future section 110(c) proceedings. Accordingly, the motion to reopen is denied.

/s/ Mary
Lu Jordan

Mary Lu Jordan, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, 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

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710