Secretary of Labor v. Castillo Ready Mix, Inc. (Commission decision, May 4, 2018)

Plain-English summary

Castillo Ready Mix believed its intended contest of Citation No. 9355405 had been misplaced while the employee responsible for the paperwork was seriously ill. The Secretary's records instead showed that the assessment was delivered on October 17, the contest was mailed on October 27, and MSHA received it on October 31. Because Castillo notified the Secretary within section 105(a)'s 30-day period, the penalty never became a final Commission order. The Commission therefore treated the reopening motion as moot and remanded the timely contest for ordinary merits proceedings.

Decision snapshot

• Cited authority: Section 105(a) of the Mine Act, 30 U.S.C. § 815(a)
• Outcome: The reopening motion was moot because the contest was timely, and the matter was remanded for further proceedings.
• Key point: A penalty assessment does not become final when the operator gives timely notice of contest, so Rule 60 reopening relief is unnecessary.

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.

CASTILLO
READY MIX, INC.

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Docket
No. CENT 2018-27-M

A.C.
No. 29-02237-444887

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 October 31, 2017, the Commission received from Castillo Ready Mix, Inc. (“Castillo”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On
August 3, 2017, the Secretary issued a proposed penalty assessment to Castillo. Castillo asserts that the operator always intended to contest Citation No. 9355405 but that the person tasked with handling the paperwork was ill at the time of the citation and subsequently passed away. [1] The operator believed that the paperwork had been misplaced and had not been timely contested. However, documents submitted by the Secretary show that the assessment in this matter was listed as delivered by the U.S. Postal service on October 17, 2017, and also listed as “unclaimed.” Further, MSHA’s records indicate that a contest for the assessment of Citation No. 9355405 was mailed on October 27, 2017 and received by MSHA on October 31, 2017. That penalty contest was docketed as CENT 2018-30-M

Having reviewed Castillo’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested the proposed assessment. Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, Castillo notified the Secretary of the contest. This obviates any need to invoke Rule 60(b). Because Castillo timely contested the proposed penalty and the Secretary filed the necessary civil proceeding before the Commission, the operator’s motion to reopen is moot. Accordingly, this case is remanded 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.

/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:

Paula
Castillo

Castillo
Ready Mix, Inc.

116
Padilla Rd.

Belen,
NM 87002

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. 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 St. South, Suite 500

Arlington,
VA 22202-5450

[1] The operator
filed medical reports, a birth certificate, and other private documents with its request to reopen to substantiate this claim. The Commission has placed copies of these personal records under seal. We ask that the Secretary destroy any copies of those records that he received from the Castillo.