Secretary of Labor v. Southway Construction Company, Inc. (Commission decision, December 7, 2016)

Plain-English summary

Southway Construction's proposed penalty became a final Commission order after MSHA recorded no contest within the Mine Act's 30-day deadline. The company said it mailed the contest form four days before the deadline, but it had no certified-mail delivery proof, and MSHA had no record of receiving the form. Southway moved to reopen after MSHA sent a delinquency notice. The Secretary did not oppose reopening but urged the operator to handle future contests on time. In the interest of justice, the Commission reopened the assessment and remanded it to the Chief Administrative Law Judge, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a), 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final penalty assessment was reopened and the case was remanded for proceedings on the merits.
• Key point: A claimed timely mailing can support reopening when MSHA did not receive the contest, even if the operator lacks certified-mail proof of delivery.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. CENT 2015-103-M

v.                                              
 :        A.C. No. 29-02224-357557  

:                                        

SOUTHWAY
CONSTRUCTION                   :

COMPANY,
INC.                                           :

BEFORE:
Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On November 20, 2014, the Commission received from Southway Construction Company, Inc. (“Southway”) 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”) demonstrate that the proposed assessment was delivered on August 20, 2014, and became a final order of the Commission on September 19, 2014. On November 4, 2014, MSHA mailed a delinquency notice to the operator. Southway claims that it had mailed the contest form on September 15, 2014. It does not, however, offer any proof of delivery via certified mail. The Secretary states that it has no record of receiving the contest form. The Secretary does not oppose the request to reopen . However, he urges Southway to ensure that future penalty assessments are contested in a timely manner.

Having
reviewed Southway’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/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

/s/ William I. Althen

William I.
Althen, Commissioner

Distribution:

Roy
Burtraw

Southway
Construction Company, Inc.

117
White Pine Drive

Alamosa,
CO 81101

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450