Secretary of Labor v. Revelation Energy, LLC (Commission decision, December 7, 2016)

Plain-English summary

Revelation Energy did not contest an MSHA penalty assessment within the Mine Act's 30-day deadline, so the assessment became a final Commission order on January 26, 2015. The operator said the mine had been closed for several days during the Christmas holiday break, and the Secretary confirmed that Revelation sent its contest form three days after the assessment became final. The Secretary did not oppose reopening but urged the operator to handle future contests on time. Guided by Federal Rule of Civil Procedure 60(b), the Commission reopened the assessment in the interest of justice and remanded for proceedings on the merits, directing 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 case was remanded to the Chief Administrative Law Judge for further proceedings.
• Key point: A short holiday closure and prompt filing three days after finality supported relief from default when the Secretary did not oppose reopening.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. KENT 2015-410

v.                                              
 :        A.C. No. 15-18280-369960

:                                        

REVELATION
ENERGY, LLC                      :

BEFORE:
Jordan, Chairman; Young, Cohen, 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 April 1, 2015, the Commission received from Revelation Energy, LLC (“Revelation”) 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”) demonstrate that the proposed assessment was delivered on December 26, 2014, and became a final order of the Commission on January 26, 2015. Revelation asserts that it failed to timely contest the proposed assessment because the mine was closed for several days in December and January during the Christmas holiday break . The Secretary does not oppose the request to reopen and confirms that the contest form was sent on January 29, 2015, three days after the date of the final order of the Commission. However, the Secretary urges Revelation to ensure that future penalty assessments are contested in a timely manner.

Having
reviewed Revelation’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, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

Distribution:

Jeffrey
Hoops

Member

Revelation
Energy, LLC

P.O.
Box 249

Stanville,
KY 41659

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450