Secretary of Labor v. Pete Lien & Sons, Inc. (Commission decision, April 30, 2015)

Plain-English summary

Pete Lien & Sons made a $2,730 partial payment for uncontested MSHA penalties on the contest deadline. The company acknowledged that it inadvertently failed to include the MSHA form identifying which other penalties it intended to contest. The Secretary did not oppose reopening but urged the operator to strengthen its filing procedures. The Commission reopened the final assessment in the interest of justice and remanded the case for proceedings on the merits. It directed 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: A contest form accidentally omitted from an otherwise timely partial-payment package 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.

PETE
LIEN & SONS, INC.

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Docket
No. CENT 2014-82-M

A.C.
No. 39-00020-332183

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 December 5, 2013, the Commission received from Pete Lien & Sons (“Pete”) 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 September 18, 2013 and became a final order of the Commission on October 18, 2013.  Pete asserts that it had made a partial payment of $2,730.00 for the uncontested penalties on October 18, 2013 but acknowledges that it inadvertently failed to include MSHA Form 1000-179, which indicates which penalties it intended to contest.  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 Pete’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.