Secretary of Labor v. Billy Jack's Sand & Gravel (Commission decision, April 30, 2015)

Plain-English summary

Billy Jack's Sand & Gravel said it timely contested an MSHA penalty assessment through the agency's online filing system. The company produced an email confirming an online submission, but the Secretary reported that the confirmation covered a quarterly mine report rather than a penalty contest. MSHA had sent a delinquency notice and later referred the debt to Treasury after receiving no response. The Secretary nevertheless did not oppose reopening and urged the operator to improve its filing procedures. The Commission reopened the assessment in the interest of justice and remanded the case, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: An operator's mistaken belief that an unrelated online filing was a penalty contest may support reopening when the Secretary does not oppose.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C.  20004‑1710

SECRETARY OF
LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION (MSHA)

v.

BILLY
JACK’S SAND & GRAVEL

:

:

:

:

:

:

:

Docket No.

A.C. No.

CENT 2014-6-M

41-04844-316151

BEFORE:  Jordan, Chairman; Young, Nakamura, and Althen, Commissioners[1]

ORDER

BY
THE COMMISSION: 

This matter arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.        § 801 et seq. (2012) (“Mine Act”).  On October 7, 2013, the Commission received from Billy Jack’s Sand and Gravel (“Billy Jack”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief.  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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on March 19, 2013, and became a final order of the Commission on April 18, 2013.  On June 3, 2013, MSHA mailed a delinquency notice to Billy Jack, and upon receiving no response, MSHA sent the case to the U.S. Department of Treasury for collection on September 19, 2013.

Billy Jack asserts that it timely
contested the proposed assessment through MSHA’s EGov online filing system on April 9, 2013.  Although Billy Jack has provided a copy of an email verifying the submission of an unspecified form through EGov, the Secretary submits that the verification is for the submission of a Quarterly Mine Report, not the contest of a proposed assessment.  The Secretary does not oppose the request to reopen, and urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed Billy Jack’s request and the Secretary’s response, in the interest 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 G. Young

Michael G.
Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William
I. Althen

William I.
Althen, Commissioner

[1]
Commissioner Cohen has elected not
to participate in this matter.