Secretary of Labor v. Bob Bergkamp Construction Company, Inc.

Plain-English summary

Bob Bergkamp Construction attempted to contest a proposed penalty before the deadline but sent its notice to the Commission instead of MSHA. The operator supplied a confirmation email showing that it uploaded a document to the Commission's electronic case system on March 29, 2022, eight days after receiving the assessment. Because MSHA did not receive the contest, the assessment became final and MSHA later issued a delinquency notice. The Secretary did not oppose reopening. The Commission found that the missed filing resulted from a mistake, reopened the assessment, and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: Timely evidence of a contest mistakenly filed with the Commission rather than MSHA supported relief from the final 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.

BOB
BERGKAMP CONSTRUCTION

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Docket
No. CENT 2022-0184

A.C.
No. 14-01622-550894

COMPANY,
INC.                    :

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 June 23, 2022, Bob Bergkamp Construction
Company, Inc., filed a motion 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).

The
Secretary of Labor states that the records of the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) indicate that a proposed assessment
was sent to the operator on March 8, 2022, and was delivered on March 21, 2022,
via U.S. Postal Service Mail. The Secretary asserts that the proposed
assessment became a final order of the Commission on April 20, 2022, 30 days
after its delivery. The Secretary further asserts that MSHA issued a
delinquency notice to the operator on June 6, 2022.

Bob
Bergkamp maintains that it attempted to timely file a contest of the proposed
penalties but mistakenly filed the notice with the Commission rather than with
MSHA. The operator attached a confirmation email from the Commission verifying it
uploaded a document to the Commission’s electronic case management system on
March 29, 2022. The Secretary does not oppose the operator’s request to reopen.

Having
reviewed Bob Bergkamp’ s request and the
Secretary’s response, we find that the operator demonstrated that it
failed to timely file because of a mistake. We hereby
reopen this matter, and remand the case 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:

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]

April Nelson, Esq.

Associate
Solicitor,

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 Glynn 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]

Morgan B. Koon,
Esq.

Koon Law Firm

800 East 21st
Street North

Witchita, Kansas

[email protected]

[email protected]