Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Cypress Pointe Inc. (Commission decision, October 20, 2016)

Plain-English summary

An operator that wants to contest an MSHA penalty has 30 days under section 105(a) of the Mine Act to say so. Miss that window and the proposed assessment becomes a final order of the Commission automatically, and the only way back in is to ask the Commission to reopen the case. Cypress Pointe Inc., a Texas operator, filed that motion here. The Secretary of Labor did not oppose it. The Commission granted the unopposed motion, reopened the case, and remanded it to the Chief Administrative Law Judge for ordinary proceedings, with the Secretary required to file a penalty petition within 45 days under Commission Rule 28. As in its other reopening orders, the Commission noted that granting this one carries no precedential weight for any other motion, so each late filing is judged on its own facts.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 813(a) as cited in the order, with Commission Rule 28 at 29 C.F.R. § 2700.28
• Outcome: Motion to reopen granted and the case remanded to the Chief Administrative Law Judge, with a penalty petition due from the Secretary within 45 days.
• Key point: Reopening restores the operator's chance to contest the penalty, but the order decides nothing about the citation itself and sets no precedent for other motions.

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 2015-480-M

v.                                             
 :         A.C. No. 41-04793-379976      

:                   

CYPRESS
POINTE 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”). The Commission has received a motion from the operator seeking to reopen a penalty assessment which had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does not oppose the motion.

Having
reviewed movant’s unopposed motion to reopen, we 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. 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.

The
granting of this motion is not precedential for the consideration of any other motion before the Commission.

/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:

James
S. Carter, President

Cypress
Pointe Incorporated

1490
Burl Ivy Way

Hemphill,
TX 75948

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

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 Street South, Suite 401

Arlington,
VA 22202-5450