Secretary of Labor v. Clarkson Construction Company, Inc.

Plain-English summary

Clarkson Construction failed to contest a proposed penalty assessment within 30 days, making the assessment a final Commission order. The company's safety director believed counsel would file the contest, while counsel believed the safety director had already filed it. That miscommunication caused the contest form to be submitted two days late. The Secretary did not oppose reopening but urged the company to handle future assessments on time. The Commission reopened the assessment in the interest of justice, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

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: A documented two-day delay caused by crossed responsibilities between company staff and counsel supported reopening when the Secretary did not object.

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 2015-82-M

v.                                              
 :        A.C. No. 14-01578-362338
KTL 

:                               

CLARKSON
CONSTRUCTION                    :

COMPANY,
INC.                                           :

BEFORE:
Jordan, Chairman; Young 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 November 12, 2014, the Commission received from
Clarkson
Construction Company, Inc. (“Clarkson”) 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 September 26, 2014, and became a
final order of the Commission on October 27, 2014. Clarkson asserts that its
error arose from a miscommunication between the safety director and the
operator’s counsel, which caused the operator to submit the contest form two
days late on October 29, 2014. Specifically, there was confusion due to the
fact that the counsel had thought that the safety director had filed the contest
form for the proposed assessment, while the safety director had thought that
the counsel was going to take care of it. The Secretary does not oppose the
request to reopen. However, he urges Clarkson to ensure that
future penalty assessments are contested in a timely manner.

Having
reviewed Clarkson’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/ William I.
Althen

William I.
Althen, Commissioner

[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).