Secretary of Labor v. Blue Diamond Coal Company, et al. (Commission decision, April 28, 2016)

Plain-English summary

Twelve operators moved to reopen penalty assessments after MSHA appeared not to have received their contest notices following its headquarters move. MSHA later received a large batch of mail that had not been forwarded to its new address, including all twelve timely notices. The agency processed the contests and docketed separate civil-penalty cases. The Commission held that the assessments had never become final because the operators had timely notified the Secretary, so Rule 60(b) reopening relief was unnecessary. It dismissed the reopening motions as moot while the separately docketed penalty cases continued.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The twelve motions to reopen were dismissed as moot because timely contests had been found and processed.
• Key point: A timely mailed and received contest prevents an assessment from becoming final even when agency mail-forwarding delays initially hide it.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),        

v.

BLUE
DIAMOND COAL COMPANY, et

al.[1]

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Docket
Nos.    KENT 2016-3

KENT
2016-4

KENT
2016-5

KENT
2016-6

LAKE
2016-9-M

WEST
2016-6-M

CENT
2015-625-M

CENT
2016-7-M

LAKE
2016-7-M

VA
2016-7

WEST
2015-967

LAKE
2016-35

BEFORE:    Jordan,
Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

ORDER

BY THE
COMMISSION: 

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.        § 801 et seq. (2012) (“Mine Act”).  Between September 15 and October 14, 2015, the Commission received motions from the above-captioned operators seeking to reopen penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

In
each of these cases, the operators claim that they mailed timely notices of contest to the Arlington office of the Mine Safety and Health Administration (“MSHA”).  The Secretary initially did not oppose reopening because of problems concerning mail delivery following the relocation of MSHA’s headquarters on July 15, 2015.  However, on October 14, 2015, MSHA received a large volume of mail that had not been forwarded to MSHA’s new address.  Included in this mail were the notices of contest for the above-captioned cases.

Having
discovered that the operators had timely contested the proposed penalties, MSHA maintains that the contests were immediately processed and docketed in separate civil penalty proceedings.  Based on these circumstances, the Secretary requests that the above-captioned dockets be dismissed as moot.

Having reviewed the requests to reopen and the Secretary’s response, we conclude that the proposed penalty assessments did not become final orders of the Commission because the operators timely contested the proposed assessments.  Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . .  proposed assessment of penalty,

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. . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.”  30 U.S.C. § 815(a).  Here, the operators notified the Secretary of the contests.  This obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure.  Accordingly, the operators’ motions to reopen are moot, and these dockets are dismissed.

/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:

Billy
R. Shelton, Esq.

Jones
Walters, Turner, & Shelton PLLC

2452
Sir Barton Way, Suite 101

Lexington,
KY 40509

Bruce
Callender

Callender
Construction Company, Inc.

928
West Washington St.

Pittsfield,
IL 62363

Allan
Atwell

Campbell
Redi-Mix

1510
Cooper Dr.

Lake
Havasu City, AZ 86403

Melvin
Flannery

Flannery
Construction, Inc.

P.O.
Box 336

Cranson,
WI 54520

Michael
D. Clements

RDM
Enterprises, Inc.

408
A Manor Dr.

Kingsport,
TN 37660

Kevin
Gates

Gates
Construction, Inc.

608
Park Ave. East

Watford
City, ND 58854

Dianna
Mears Tassin

Mears
Sand & Gravel

40
Mears Rd.

Denham
Springs, LA 70706

Christopher
G. Peterson, Esq.

Jackson
Kelly PLLC

1099
18th Street, Suite 2150

Denver,
CO 80202

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

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 401

Arlington,
VA 22202-5450

Exhibit 1

Operator

Docket
Number

A.C.
Number

Blue
Diamond Coal Company

KENT
2016-3

15-19598-384070

Blue
Diamond Coal Company

KENT
2016-4

15-17478-384056

Blue
Diamond Coal Company

KENT
2016-5

15-17497-384057

Blue
Diamond Coal Company

KENT
2016-6

15-17497-384768

Callender
Construction Company, Inc.

LAKE
2016-9-M

11-00214-385554

Campbell
Redi-Mix

WEST
2016-6-M

02-03022-386154

Gates
Construction Inc.

CENT
2015-625-M

32-01050-382708

Mears
Sand & Gravel, LLC

CENT
2016-7-M

16-00883-382655

Mel
Flannery Trucking

LAKE
2016-7-M

47-03029-384752

RDM
Enterprises, Inc.

VA
2016-7

44-06929-385047-S889

Signal
Peak Energy, LLC

WEST
2015-967

24-01950-384634

Triad
Underground Mining, LLC

LAKE
2016-35

12-02423-384766

[1] For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket numbers KENT 2016-3, KENT 2016-4, KENT 2016-5, KENT 2016-6, LAKE 2016-9-M, WEST 2016-6-M, CENT 2015-625-M, CENT 2016-7-M, LAKE 2016-7-M, VA 2016-7, WEST 2015-967, and LAKE 2016-35 involving similar procedural issues.  29 C.F.R. § 2700.12.  For the sake of brevity, the relevant operator’s names, A.C. numbers, and associated docket numbers have been listed in Appendix A, attached to this order.