Omis Ricky Smith (Commission decision, February 17, 2009)

Plain-English summary

Omis Ricky Smith asked the Commission to reopen a proposed penalty assessment that he believed had become final. The Secretary determined that the assessment had not been served and planned to send it again to the correct address. The Commission held that without service, the assessment never became a final order under section 105(a) of the Mine Act. It dismissed Smith's request as moot, leaving him 30 days after receipt of the re-sent assessment to contest the penalty.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Smith's request to reopen was dismissed as moot because no valid final order existed.
• Key point: A proposed assessment does not become a final Commission order when service was never achieved.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 17, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

OMIS RICKY SMITH

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Docket No. KENT 2008-1482
A.C. No. 15-18788-122198M

BEFORE: Duffy, 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. (2006) (“Mine Act”). On August 21, 2008, the Commission received from Omis Ricky Smith (“Smith”) a letter 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).

The Secretary states that upon review of the record, she has found that service of the proposed assessment was not achieved, and as a result, the assessment did not become a valid final order. The Secretary plans to resend the proposed assessment to the correct address and then Mr. Smith will have 30 days after receipt to contest the penalty. Accordingly, the Secretary submits that the request to reopen should be dismissed as moot.

Given the circumstances and in the interest of justice, we conclude that service of the proposed assessment was never made, and thus there is no final order under section 105(a) of the Mine Act. Hence, Mr. Smith’s motion is moot and his request is dismissed.

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution:

Omis Ricky Smith

P.O. Box 147

Banner, KY 41603

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021