Secretary of Labor v. Affinity Coal Company, LLC (Commission decision, July 30, 2013)

Plain-English summary

Affinity Coal missed the penalty-contest deadline after a mining accident delayed its safety director's forwarding of the notice to counsel. The notice reached counsel one week after the assessment became a final Commission order. The Secretary did not oppose reopening and noted that MSHA received payment for the uncontested penalties. The Commission reopened the assessment in the interest of justice and remanded the matter for further proceedings. The official release body identifies docket KENT 2013-537 even though its source filename identifies WEVA 2013-603.

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: An extraordinary operational event that causes a short internal processing delay may 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.

AFFINITY COAL COMPANY,
LLC
:
:
:
:
:
:
:

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 March 4, 2013, the Commission received from Affinity Coal Company, LLC (“Affinity”) 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 17, 2013, and became a final order of the Commission on February 19, 2013. Affinity asserts that due to a mining accident on February 7, its safety director did not forward the notice of contest to counsel until February 26. The Secretary does not oppose the request to reopen, and notes that MSHA received a payment for the uncontested penalties, by check dated March 6, 2013.

Having
reviewed Affinity’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:

Jonathan R. Ellis, Esq.

Steptoe & Johnson, PLLC

707 Virginia Street, East, 8TH Fl.

P.O. Box 1588

Charleston, WV 25326-1588

[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