Secretary of Labor v. E&G Masonry Stone #2 (Commission decision, December 18, 2015)

Plain-English summary

E&G Masonry Stone missed the deadline to contest a proposed penalty assessment after a miscommunication with off-site mine management. The operator pointed to an earlier notice contesting one of the citations as evidence that it intended to challenge the penalties, and the Secretary did not oppose reopening. The Commission reopened the assessment in the interest of justice and remanded it for further proceedings. This was E&G's third reopening motion in two years, so the Commission warned that future requests could be denied unless the operator corrected faults in its penalty-processing system.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Reopening may be granted for a documented processing failure, but repeated defaults can lead to denial if the operator does not build a reliable contest system.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),       

v.

E
& G MASONRY STONE #2,

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:

:

:

:

:

:

Docket
No. CENT 2015-21-M

A.C.
No. 41-04413-358874

BEFORE:  Jordan,
Chairman; Young, Cohen, Nakamura, 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 October 10, 2014, the Commission received from E & G Masonry Stone #2 (“E&G”) 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 August 18, 2014, and became a final order of the Commission on September 17, 2015. E&G asserts that it intended to contest the proposed penalties but that there was a miscommunication with off-site mine management.[2] E&G further argues that its intent to contest is evident by the July 22, 2014 notice of contest filed by E&G for Citation No. 8774372. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed E&G’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/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Nicholas
W. Scala, 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

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

[2] We note that
this is the third motion to reopen filed by E&G in a two year period. See E & G Masonry Stone #2, 34 FMSHRC 3044 (Dec. 2012) (approving motion to reopen when operator mailed an incomplete contest); E & G Masonry Stone #2, 36 FMSHRC 5 (Jan. 2014) (denying motion to reopen when operator filed more than a year after becoming a final order). If E&G does not take steps to remedy the faults in its processing of penalty contests, future motions to reopen may be denied. See, e.g., Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011) (an operator has not established grounds for reopening when the failure to contest a proposed assessment results from an inadequate or unreliable internal processing system).