Secretary of Labor v. Southern Aggregates, LLC (Commission decision, August 30, 2018)

Plain-English summary

Southern Aggregates intended to contest penalties for two citations but mistakenly mailed the contest with payment for two uncontested citations to MSHA's payment center rather than its penalty compliance office. MSHA processed the partial payment before the assessment became final, and the operator moved to reopen less than 30 days after receiving a delinquency notice. The Secretary did not oppose reopening, and the Commission found that the late contest resulted from a mistake about the proper filing address. It reopened the final assessment and remanded the matter for penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge for further proceedings.
• Key point: A documented address mistake, timely partial payment, and a prompt reopening request after notice can establish good cause to reopen a final penalty assessment.

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.

SOUTHERN
AGGREGATES, LLC

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:

:

:

:

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Docket
No. CENT 2017-515

A.C.
No. 16-01551-440549

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 September 19, 2017, the Commission received from Southern Aggregates, LLC. (“Southern Aggregates”) 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 June 14, 2017, and became a final order of the Commission on July 14, 2017. On August 29, 2017, MSHA sent a delinquency notice to the operator alerting it that a timely contest had not been properly filed.

Southern Aggregates asserts that it
intended to contest the penalties for two of four citations but that it mistakenly mailed its contest along with the payment of the uncontested penalties to MSHA’s St. Louis Payment Processing Center. [1] The Secretary does not oppose the request to reopen, and confirms that MSHA internal records show that it processed a partial payment for this assessment on July 5, 2017, before the assessment became a final order. S ignificantly, Southern Aggregates has not filed any other motions to reopen with the Commission in the last two years and filed its motion to reopen on September 19, 2017, less than 30 days after MSHA sent the delinquency notice.

Therefore,
having reviewed Southern Aggregates’ request and the Secretary’s response, we find that the operator’s failure to timely contest the assessment was the result of a mistake regarding the proper address for filing a contest with MSHA. 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/ 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:

Nicholas
W. Scala, Esq.

CMSP
Chair

Conn
Maciel Carey LLP

5335
Wisconsin Ave., NW, Suite 660

Washington,
D.C. 20015

Ali
Beydoun, 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] Contests of
proposed penalties should be sent to the MSHA Civil Penalty Compliance Office in Arlington, Virginia, as indicated on the Notice of Contest Rights and Instructions, included with the proposed assessment.