Secretary of Labor v. Dodge Hill Mining Company, LLC (Commission decision, July 30, 2013)

Plain-English summary

Dodge Hill Mining's safety manager sent a completed penalty-contest form to Patriot Coal's corporate office within the 30-day period. An administrative assistant delayed filing it until four days after the assessment became a final Commission order. The Secretary did not oppose reopening, but urged better filing procedures and warned that future late-contest motions might be opposed. The Commission reopened the assessment in the interest of justice and remanded the matter for further proceedings. This official release prints the same docket and A.C. number as other July 30, 2013 releases involving different operators.

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 internal forwarding delay may support reopening, but an operator must establish procedures that reliably meet the statutory contest deadline.

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.

DODGE HILL MINING COMPANY, LLC

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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 March 4, 2013, the Commission received from Dodge Hill Mining Company, LLC (“Dodge”) 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 15, 2013, and became a final order of the Commission on February 14, 2013. Dodge asserts that its safety manager sent the completed contest form to the corporate office of Patriot Coal Corporation (“Patriot”) on January 21. Patriot’s administrative assistant was delayed in filing the contest until February 18. The Secretary does not oppose the request to reopen, and notes that MSHA received a payment for the uncontested penalties, by check dated March 1, 2013. The Secretary urges the operator to take steps to ensure that future penalty contests are timely filed, and cautions that he may oppose future motions to reopen penalty assessments that are not contested in a timely manner.

Having reviewed Dodge’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:

Jeffrey K. Phillips, Esq.

Steptoe & Johnson, PLLC

2525 Harrodsburg Rd., Suite 300

Lexington, KY 40504

[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