Secretary of Labor v. South Akers Mining, LLC (Commission decision, March 26, 2014)

Plain-English summary

South Akers Mining missed the deadline to contest a proposed penalty assessment. Its consultant said he did not receive the assessment and learned of the problem from MSHA's late notice, although MSHA received a contest form 12 days after the assessment became final. The Secretary did not oppose reopening but urged the operator and consultant to improve their filing procedures. The Commission reopened the matter in the interest of justice, remanded it, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded for a penalty petition within 45 days.
• Key point: A consultant's claimed nonreceipt and prompt late contest supported unopposed reopening, with a warning to improve deadline controls.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

March
26, 2014

SECRETARY OF LABOR,��������������������������������������

�MINE SAFETY AND HEALTH

�ADMINISTRATION (MSHA)

���������������� v.

SOUTH AKERS MINING, LLC

��������� Docket No. KENT
2013-782���������������������

��������� A.C. No.
15-18436-313936

�����������������������������������������������������������������������������������

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On May 21, 2013, the Commission received from South Akers Mining, LLC (“South Akers”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on February 19, 2013, and became a final order of the Commission on March 21, 2013. South Akers’ consultant asserts that he never received the proposed assessment and discovered the delinquency after receiving MSHA’s late notice, dated April 11, 2013. The Secretary does not oppose the request to reopen, but notes that MSHA received a contest form from the consultant, dated April 2, 2013, which was 12 days after the final order date. MSHA mailed a delinquency notice on May 6, 2013. The Secretary urges the operator and its consultant to take steps to ensure that future penalty contests are timely filed.

Having reviewed South Akers’ 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, Chairman

/s/Michael G. Young����

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.��

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura� �����

Patrick K. Nakamura, Commissioner

�����������������������������������������������������������������������������������������������������������������������������������������������������������

/s/ William I. Althen���

William I. Althen, Commissioner

Distribution

Gerald W. McMasters

South Akers Mining

630 Washington Avenue

Paintsville, KY 41240

[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