Frontier-Kemper Constructors Inc. (Commission decision, November 10, 2008)

Plain-English summary

Frontier-Kemper timely contested citations, and those contest proceedings were stayed while MSHA prepared the proposed penalties. When the assessment arrived, an employee mistakenly believed no separate penalty contest was needed because the citations were already under contest. The assessment form was not returned, and the company acted after receiving a delinquency notice. The Secretary did not oppose reopening. The Commission remanded for the Chief ALJ to determine whether the clerical misunderstanding established good cause and justified relief.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for a determination of good cause and entitlement to relief.
• Key point: Contesting a citation does not replace the separate duty to contest the later penalty assessment, though confusion between the two procedures may support good cause.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 10, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

FRONTIER-KEMPER

CONSTRUCTORS INC.

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Docket No. LAKE 2008-569

A.C. No. 12-02215-148226 A01

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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. (2000) (“Mine Act”). On July 30, 2008, the Commission received from Frontier-Kemper Constructors Inc. (“Frontier-Kemper”) a motion by counsel 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).

On February 29, 2008, the Department of Labor’s Mine Safety and Health Administration (MSHA) issued citations to Frontier-Kemper that it subsequently contested. The contest proceedings were stayed pending issuance of proposed penalties. On April 23, 2008, MSHA issued a proposed assessment for the citations that Frontier-Kemper had contested. According to Frontier-Kemper, due to a “clerical error and misunderstanding” by one of its employees, who thought it was unnecessary to contest the penalties since the citations had already been contested, the proposed assessment form was never returned to MSHA. On July 21, 2008, Frontier-Kemper received a delinquency notice regarding the penalties of the citations that it had contested. The Secretary states that she does not oppose Frontier-Kemper’s request to reopen the penalty assessment.

We have held 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 inadvertence or mistake. 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).

Having reviewed Frontier-Kemper’s motion and the Secretary’s response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Frontier-Kemper’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

R. Brian Hendrix, Esq.

Patton Boggs, LLP

2550 M Street NW

Washington, DC 20037

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021