Secretary of Labor v. Richmond Material Company

Plain-English summary

Richmond Material Company did not contest a proposed penalty within 30 days, so the assessment became a final Commission order. The company said it never received the assessment and first learned of it through a delinquency letter dated November 17, 2021. It also said mail at the listed address was checked daily and assessments were normally processed on time. The Secretary did not oppose reopening but urged the company to prevent future late contests. The Commission found that the missed deadline resulted from inadvertent lack of knowledge, reopened the assessment, and remanded the case for penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and the matter was remanded for further proceedings.
• Key point: A prompt reopening motion supported relief when the operator showed it did not know about the proposed assessment and normally handled assessments on time.

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.

RICHMOND
MATERIAL COMPANY

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Docket
No. CENT 2022-0048

A.C.
No. 41-04219-538889

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. (2018) (“Mine Act”). On November 24, 2021, the Commission
received from Richmond Material Company (“RMC”) 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 July 27, 2021, and
became  a final order of the Commission on August 26, 2021. RMC asserts that it
never received the proposed assessment, only learning of the assessment due to
a delinquency letter received on November 17, 2021. The operator notes that the
address listed on the assessment is checked daily for mail, and that
assessments are routinely processed in a timely manner. 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.

Having
reviewed RMC’s request and the Secretary’s
response, we find that RMC’s failure to timely respond was due to
inadvertent ignorance of the proposed assessment. We note that the motion to
reopen was filed shortly after RMC learned of the 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:

Jeffrey
K. Phillips, Esq.

Steptoe
& Johnson PLLC

One
Paragon Centre

2525
Harrodsburg Road, Suite 300

Lexington
KY 40504

[email protected]

Emily
Toler-Scott, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]