Panther Mining LLC (Commission decision, April 4, 2008)

Plain-English summary

MSHA issued an assessment covering 80 citations to Panther Mining LLC. Panther said it did not receive the assessment until more than a month after issuance, and the returned form indicated that it sought to contest 35 penalties about six days after the claimed receipt date. The Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to determine whether the contest was timely and, if not, whether good cause supported relief from the final order.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The contest was remanded for a timeliness determination and, if necessary, a good-cause determination.
• Key point: The 30-day contest period depends on receipt, so a disputed delivery date must be resolved before default relief is considered.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20001

April 4, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

PANTHER MINING LLC

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Docket No. KENT 2008-257

A.C. No. 15-18198-127066

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On December 6, 2007, the Commission received a letter requesting that the Commission reopen a penalty assessment issued to Panther Mining LLC (“Panther”) that may have 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).

On September 12, 2007, the Department of Labor’s Mine Safety and Health Administration issued Assessment No. 000127066, which proposed penalties for 80 citations that had previously been issued to Panther. The operator states that it did not receive the assessment form until October 23, 2007. In response, the Secretary states that she does not oppose Panther’s request to reopen. She also forwarded to the Commission a copy of the assessment she received from Panther indicating the operator’s desire to contest 35 of the proposed penalties, and which includes a handwritten note that appears to suggest that the operator returned the form on or about October 29.

We have held 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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).

Having reviewed Panther’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether Panther’s contest was timely and, if it was not timely, whether good cause exists for granting relief from the final order. If Panther’s contest was timely, or if it is determined that it was not but that relief from the final order is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution:

Larry A. Coeburn, Safety Coordinator

Panther Mining, LLC.

P.O. Box 2560

Wise, VA 24293

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Department 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