Secretary of Labor v. Roberson Lime & Rock, Inc. (Commission decision, July 30, 2013)

Plain-English summary

Roberson Lime & Rock said it mailed a timely penalty-contest notice to MSHA's Arlington office, but the package was returned undelivered. The company supplied Postal Service tracking proof, and MSHA's St. Louis payment office received its check for the uncontested penalties. The Secretary did not oppose reopening. The Commission reopened the final assessment in the interest of justice and remanded the matter for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final penalty assessment was reopened and the matter was remanded for proceedings on the merits.
• Key point: Postal tracking that shows a timely contest was returned undelivered can establish good cause to reopen a final assessment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 30, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROBERSON LIME & ROCK, INC.

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Docket No. KENT 2013-537

A.C. No. 15-18335-310776

BEFORE: Jordan, Chairman; Young and Nakamura, 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 February 14, 2013, the Commission received from Roberson Lime and Rock, Inc. (“Roberson”) 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 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 mistake, inadvertence, or excusable neglect. 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).

MSHA’s records indicate that the proposed assessment was delivered on January 9, 2013, and became a final order of the Commission on February 8, 2013. Roberson asserts that it mailed a timely notice of contest to Arlington, VA, on January 22, but it was returned undelivered. Roberson has enclosed a Postal Service tracking receipt confirming that the package was returned to Minnesota. The Secretary does not oppose the request to reopen, and notes that the MSHA payment office in St. Louis, MO, received a check for the uncontested penalties, dated January 22, 2013.

Having reviewed Roberson’s request and the Secretary’s response, 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/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Josh Roberson

Roberson Lime & Rock, Inc.

34686 Co Road 72

Zumbro Falls, MN 55991

[email protected]

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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

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

Washington, D.C. 20004-1710