Road Fork Development Company, Inc. (Commission decision, April 30, 2008)

Plain-English summary

MSHA proposed penalties for 12 citations issued to Road Fork Development. The company faxed the assessment to its law firm, where a paralegal tried to email a scanned copy to the responsible attorneys. Unspecified technical problems prevented delivery, no contest was filed, and the error was discovered after MSHA sent an unpaid-assessment invoice. The Secretary did not oppose reopening, and the Commission remanded for a determination of good cause and entitlement to relief.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for a determination of good cause and entitlement to relief.
• Key point: A failed internal electronic transmission at counsel's office requires factual review before it can support relief from a missed contest deadline.

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

April 30, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROAD FORK DEVELOPMENT

COMPANY, INC.

:

:

:

:

:

:

:

:

:

Docket No. KENT 2008-512
A.C. No. 15-09830-132554

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 February 11, 2008, the Commission received from Road Fork Development Company Inc. (“Road Fork”) a motion by counsel 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).

On November 27, 2007, the Department of Labor’s Mine Safety and Health Administration issued a proposed assessment to Road Fork for 12 citations that had been previously issued to the operator. Road Fork states that, following receipt of the assessment, it faxed the proposed assessment to the law firm which represented it in proceedings before the Commission. The paralegal at the law firm who is responsible for receiving and processing documents attempted to scan the assessment form and send it by electronic mail to the attorneys who were primarily responsible for handling Road Fork matters. However, because of unspecified technical problems, the attorneys never received the email, and no contest of the penalty assessment was filed. Road Fork learned of the error when it received an invoice from MSHA specifying unpaid assessments. The Secretary states that she does not oppose the reopening of the assessment.

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 Road Fork’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Road Fork’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

______

Michael G. Young, Commissioner

Distribution:

Ramonda C. Lyons, Esq.

Dinsmore & Shohl, LLP

P. O. Box 11887

900 Lee Street

Suite 600

Charleston, WV 25339

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