Secretary of Labor v. Central Sand Co., Inc. (Commission decision, January 12, 2021)

Plain-English summary

Central Sand missed its penalty-contest deadline while its office was short-staffed because of COVID-19. The company filed its reopening motion five days after the assessment became a final Commission order. The Secretary did not oppose reopening but urged the operator to ensure future contests are timely. The Commission found inadvertence, mistake, and excusable neglect, reopened the assessment, and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: A short pandemic-related staffing delay supported relief when the operator moved to reopen five days after finality.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH      

ADMINISTRATION (MSHA)         

v.

CENTRAL SAND CO., INC.

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Docket No. CENT 2020-0178-M

A.C. No. 14-01733-512758

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 June 23, 2020, the Commission received from Central Sand Co., Inc., (“Central Sand”) 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 May 18, 2020, and became a final order of the Commission on June 18. Central Sand’s motion says that its office was short-staffed due to Covid 19. The motion was filed five days after the underlying assessment had become a final order of the Commission.

The Secretary does
not oppose the requests to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed. Having reviewed Central Sand’s request and the Secretary’s response, we find that the operator has sufficiently explained its failure to timely contest the citations at issue as the result of inadvertence, mistake, and excusable neglect. 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/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution (by e-mail):

Holly Schrag

Assistant Comptroller

Central Sand Co., Inc.

7945 N Broadway

Valley Center, KS 67147

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12 th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge
Glynn Voisin

Federal Mine Safety & Health
Review Commission

1331 Pennsylvania Avenue, NW,
Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

[email protected]