Secretary of Labor v. Buzzi Unicem USA (Commission decision, July 10, 2017)

Plain-English summary

Buzzi Unicem failed to contest a proposed penalty within 30 days, causing the assessment to become a final Commission order. Its safety manager first mailed the contest to an obsolete address printed on MSHA's assessment form and resent it after the envelope was returned. Although the Secretary argued that the first mailing was already late and that Buzzi waited too long after a delinquency notice, the Commission treated the address error and the pro se operator's misunderstanding as excusable in the special circumstances surrounding MSHA's office move. The Commission also found that Buzzi acted promptly once it later learned the contest had arrived late. It reopened the assessment and remanded the matter for ordinary penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); Federal Rule of Civil Procedure 60(b)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: An obsolete MSHA address printed on an assessment form can support reopening when the operator resends the contest and moves promptly after learning that a default occurred.

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.

BUZZI
UNICEM USA

:

:

:

:

:

:

:

Docket
No. CENT 2016-0190

A.C.
No. 23-00134-382897

BEFORE:   
Althen, Acting Chairman; Jordan, Young, and Cohen, 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 January 28, 2016, the Commission received from Buzzi Unicem USA (“Buzzi”) 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 another 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).  Under Rule 60(c) of the Federal Rules of Civil Procedure, a Rule 60(b) motion should be made within a reasonable time.

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on June 8, 2015, and became a final order of the Commission on July 8, 2015.  Buzzi asserts that MSHA received its contest late, in part due to the assessment form incorrectly listing an old address for MSHA’s Civil Penalty Compliance Office (“CPCO”). [1] Buzzi’s safety and health manager first sent its contest form to the old address, then re-sent the form to the correct MSHA address after the initial form was returned undelivered.  Buzzi’s safety and health manager later contacted MSHA to ask about the case and learned that the proposed penalty assessment had become a final order.

The Secretary opposes the request to
reopen, asserting that the operator’s initial attempt to send its contest form was made too late, regardless of MSHA’s change of address.  MSHA further asserts that the operator’s motion to reopen was not filed within a reasonable time because Buzzi waited five months after receiving a delinquency notice before filing its motion to the Commission.  According to MSHA’s records, a delinquency notice was mailed to the operator on August 24, 2015, and this case was referred to the Department of Treasury for collection on October 29, 2015.

It is unclear from the record when Buzzi
first attempted to file its contest of MSHA’s proposed penalty assessment.  We have previously acknowledged the problems that resulted from MSHA’s address change and liberally granted operators’ requests to reopen proceedings filed during that period.   See Allstate Materials, LLC, 38 FMSHRC 645, 646 (Apr. 2016).  Even assuming Buzzi’s initial effort was made late, in these special circumstances, we would err on the side of concluding that the late filing was the result of an excusable mistake.

Although the Secretary also asserts that
Buzzi should have filed its motion to reopen more promptly, the delinquency notice was delivered shortly after the pro se operator sent its contest to the correct MSHA address.  Given the timing of these events, the operator’s failure to understand that the delinquency notice indicated the proposed assessment had become a final order is, in this instance, excusable.  Upon later inquiring about the citation and learning the contest had arrived late, the operator promptly moved to reopen this matter.

In light of our past precedent addressing
the relocation of MSHA’s office, 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.

/ s/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Shannon
Moreland

Safety
and Health Manager

2524
S. Sprigg Street

Cape
Girardeau, MO 63701

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] MSHA’s office
moved to a new address on July 15, 2015.