Jones Bros Mfg, Inc. v. Secretary of Labor (Commission decision, February 19, 2016)

Plain-English summary

Jones Bros sought review of an imminent-danger withdrawal order after the 30-day contest deadline had passed. The company had timely contested a related citation but said it lacked prior experience and did not understand that the withdrawal order had a separate deadline. Counsel later explained the correct procedures, and the Secretary did not oppose relief. The Commission treated the reopening request as a motion to extend time and found good cause based on the interest of justice and judicial economy. Jones Bros received 30 days from the Commission's order to file its application for review.

Decision snapshot

• Governing provisions: 30 U.S.C. § 817(e)(1); 29 C.F.R. § 2700.9
• Outcome: The filing deadline was extended, and Jones Bros was given 30 days to seek review of the imminent-danger order.
• Key point: An inexperienced operator's timely contest of a related citation and later correction of its filing procedures supported good cause to extend the separate deadline for an imminent-danger order.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON,
DC 20004-1710

JONES
BROS MFG, INC.     

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

:

:

:

:

:

:

:

Docket
No. CENT 2015-386-RM

Order
No. 8860641; 02/10/2015

BEFORE:  Jordan,
Chairman; Young and Cohen, 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 May 4, 2015, the Commission received from Jones Bros. MFG, Inc., (“Jones”) a motion seeking to reopen an imminent danger withdrawal order that had been issued pursuant to section 107(a) of the Mine Act, 30 U.S.C. § 817(a).

Under
section 107(e)(1) of the Mine Act, an operator who wishes to contest an imminent danger order under section 107(a) may request review by the Commission no later than 30 days after being notified of such order. Commission Procedural Rule 9 allows the Commission to extend the filing time for a document for good cause shown. 29 C.F.R. § 2700.9(a). The rule allows the Commission to grant motions for extensions of time after the designated filing time has expired if the party requesting the extension can show, in writing, the reasons for its failure to make the request before the filing deadline. 29 C.F.R. § 2700.9(b).

The
section 107(a) order that Jones seeks to contest was issued on February 10, 2015. Hence, the deadline for contesting it under section 107(e)(1) was March 12, 2015. Also on February 10, Citation No. 8860642 was issued for the same condition, pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a). Jones asserts that it received the proposed assessment for the section 104(a) citation around April 22, 2015, and contested the citation on April 29, 2015. Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the section 104(a) citation was timely contested and has been docketed as Docket No. CENT 2015-0382, A.C. No. 41-02925-377834. Jones asserts that it intended to contest the section 107(a) order as well, but had no experience in contesting citations prior to this inspection and was not aware of the 30-day filing deadline for section 107(a) orders. The operator avers that it has been informed of the proper filing deadlines by its counsel and now understands the procedures that must be followed. The Secretary does not oppose the request to reopen.

Relying
on Rule 60(b) of the Federal Rules of Civil Procedure, we have 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, appropriate proceedings on the merits may be permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). We find that the same considerations apply to the order here under Commission Procedural Rule 9. Having reviewed Jones’ request and the Secretary’s response, in the interest of justice and judicial economy, we therefore construe Jones’ motion to reopen as a motion for an extension of time under Commission Rule 9, find that Jones has shown good cause for us to extend the time to contest the order at issue, and extend the deadline to file an application for review of the imminent danger withdrawal order.

Jones is instructed to
file an application for review within 30 days of the date of this order, to be followed by further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/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

Distribution:

Nicholas
Scala, Esq., CMSP

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

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 30 U.S.C. § 823(c).