Secretary of Labor v. Cooper Stone, LLC

Plain-English summary

A proposed penalty assessment became final after Cooper Stone did not contest it within 30 days. The operator said it had ongoing mail-delivery problems, did not receive the assessment, and first learned about it from a later statement listing the uncontested violations. The Secretary did not oppose reopening but urged the operator to improve its procedures for future contests. The Commission found that Cooper Stone had not received the assessment, reopened the matter in the interest of justice, and remanded it for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 100.7, 2700.1(b), and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: A final assessment may be reopened when the operator establishes that it did not receive the original assessment.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR,                             :                    

MINE SAFETY AND HEALTH                    
:                                            

ADMINISTRATION (MSHA)                       
:

:

v.                                              
:         Docket No.  CENT 2021-0131

:         A.C. No. 41-03401-523770            

COOPER STONE, LLC                                  :

BEFORE: Traynor, Chair; Althen and Rajkovich,
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 April 19, 2021, the Commission received from
Cooper Stone, LLC (“Cooper Stone”) 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), 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).

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicates that the proposed assessment was delivered to the operator on November
8, 2020. The assessment became a final order of the Commission on December 8,
2020.

Cooper Stone asserts that due to ongoing issues with its mail
delivery, it did not receive the assessment and was considering changing its
mailing address to a personal address in the hopes that mail delivery would
improve. Cooper Stone asserts that it first learned of the assessment when it
received another statement containing the previous uncontested violations. Cooper Stone has not filed any other motions to reopen
with the Commission in the last two years. The Secretary does not oppose the request to reopen but urges the
operator to take steps to ensure that future penalty contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. §
100.7 and the Commission’s procedural rules.

Having
reviewed Cooper Stone’s request and the Secretary’s response, we find that the
operator did not receive the penalty assessment. 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/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William
I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich Jr., Commissioner

Distribution:

Micah Flippen

Owner, Cooper Stone, LLC

3786 W FM 487

Jarrell, TX 76537

[email protected]

Thomas Paige, Esq.

Office of the Solicitor

Division of Mine Safety and
Health

U.S. Department of Labor,

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[email protected]

Archith Ramkumar, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health
Division

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

201 12th Street South, Suite
401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law
Judge Glynn F. Voisin

Federal Mine Safety &
Health Review Commission

1331 Pennsylvania Avenue, NW,
Suite 520N

Washington, DC 20004-1710

[email protected]