Jason Falk, employed by Lafarge Utica, Inc. (Commission decision, September 26, 2011)

Plain-English summary

Jason Falk sought to reopen an individual civil-penalty assessment under section 110(c) of the Mine Act. He said the assessment was sent to another Lafarge operation and never reached him or his employer, Lafarge Utica. The Secretary did not oppose reopening but noted that Falk had declined to provide a mailing address and warned that future requests would be opposed unless he supplied one. The Commission reopened the matter in the interests 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), 820(c); 29 C.F.R. §§ 2700.1(b), 2700.26, 2700.27, 2700.28
• Outcome: The individual penalty assessment was reopened and remanded for further proceedings.
• Key point: The Commission may reopen a final individual assessment when the assessed person shows that the mailed assessment did not reach him.

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

September 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

JASON FALK, employed by
LAFARGE UTICA, INC.

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Docket No. LAKE 2011-593-M

A.C. No. 11-02725-235079 A

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 April 22, 2011, the Commission received from Jason Falk, Employed by Lafarge Utica, Inc. (“Falk”) a motion made by counsel seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), 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 the Commission’s Procedural Rules, an individual charged under section 110(c) has 30 days following receipt of the proposed penalty assessment within which to notify the Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 29 C.F.R. § 2700.27.

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).

Falk asserts the penalty assessment form was mailed to the address of Lafarge Elburn, Inc. and then forwarded to Lafarge Utica, Inc., Falk’s employer. Falk further asserts the form was never received by Falk or Lafarge Utica, Inc. The Secretary does not oppose the request to reopen. However, the Secretary notes that the proposed assessment was mailed to Mr. Falk at the operator’s address of record, after Falk declined a request to provide a mailing address. Moreover, the Secretary asserts that she will oppose further requests to reopen unless Falk provides a correct mailing address to which MSHA may send documents.

Having reviewed Falk’s request and the Secretary’s response, in the interests 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.

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, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

Laura E. Beverage, 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

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

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