Stommes Construction, Inc.

Plain-English summary

Stommes Construction sought to reopen four final penalty assessments and one default order, asserting that it had not received the underlying documents. Three motions were filed more than one year after the assessments became final and were untimely. Delivery records contradicted the operator's denial of receipt in another case, and postal records showed that it received the show-cause order that later became a default. The Commission also considered Stommes' repeated delinquencies, failure to respond to notices, and lack of a reply to the Secretary's bad-faith argument. It denied all five motions with prejudice.

Decision snapshot

• Cited provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: All five motions to reopen final assessments or a default order were denied with prejudice.
• Key point: Untimely motions, documented delivery, repeated delinquencies, and lack of good faith defeat requests for extraordinary reopening relief.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 14, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

STOMMES CONSTRUCTION, INC.

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Docket No. LAKE 2011-627-M

A.C. No. 21-03314-250674

Docket No. LAKE 2012-235-M

A.C. No. 21-03314-186661

Docket No. LAKE 2012-236-M

A.C. No. 21-03314-236955

Docket No. LAKE 2012-237-M

A.C. No. 21-03314-230600

Docket No. LAKE 2012-238-M

A.C. No. 21-03314-248171

BEFORE: Jordan, Chairman; Young and Nakamura, 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. (2006) (“Mine Act”). On December 22, 2011, the Commission received from
Stommes Construction, Inc. (“Stommes”) four motions seeking to reopen four 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), and one motion seeking to relieve it from the order of default
entered against it.

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).

The Commission has exercised jurisdiction over final orders arising from failure to
respond to show-cause orders, see, e.g., FMC Corporation, 34 FMSHRC 1292, 1293 (June
2012), as well as orders that have become final 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, 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”); see also JWR, 15 FMSHRC at 787.

In deciding to reopen final orders in the interests of justice, we have held 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). In all cases under Rule 60(b),
any motion for relief shall be made within a reasonable time, and for reasons of mistake,
inadvertence, or excusable neglect under subsections (1), (2), and (3) of the rule, not more than
one year after the judgment, order, or proceeding was entered or taken.

The record indicates that proposed assessment No. 000186661 was delivered on June 10,
2009, signed for by T. Miller, and became a final order of the Commission on July 10, 2009. A
notice of delinquency was mailed on August 26, 2009, and the case was referred to the U.S.
Department of Treasury for collection on December 10, 2009. Proposed assessment No.
000236955 was delivered on November 9, 2010, signed for by L. Miller, and became a final
order of the Commission on December 9, 2010. A notice of delinquency was mailed on February
10, 2011, and the case was referred to the U.S. Department of Treasury for collection on May 12,
2011. Proposed assessment No. 000230600 was delivered on September 9, 2010, signed for by
J. Miller, and became a final order of the Commission on October 11, 2010. A notice of
delinquency was mailed on December 1, 2010, and the case was referred to the U.S. Department
of Treasury for collection on March 17, 2011. Proposed assessment No. 000248171 was
delivered on March 8, 2011, signed for by L. Miller, and became a final order of the Commission
on April 7, 2011. A notice of delinquency was mailed on May 23, 2011, and the case was
referred to the U.S. Department of Treasury for collection on September 8, 2011.

In LAKE 2011-627-M, which involves proposed assessment No. 000250674, Stommes
contested the proposed assessment, but failed to answer the Secretary’s Petition for Assessment
of Civil Penalty, issued on June 10, 2011. On August 22, 2011, Chief Administrative Law Judge
Lesnick issued an Order to Show Cause, which was delivered on August 26, and which by its
terms became a Default Order on September 22 when the operator failed to file an answer within
30 days.

In all five cases, Stommes asserts that it did not receive MSHA’s proposed assessments.
In three of the cases, those involving proposed assessments Nos. 000186661, 000236955, and
000230600, the motions to reopen were filed more than one year after becoming final orders.
Therefore, those motions are untimely, and are denied. J S Sand & Gravel, Inc., 26 FMSHRC
795, 796 (Oct. 2004).

The Secretary opposes all of the requests to reopen and asserts that the operator identified
no exceptional circumstances warranting reopening. In support of her opposition, the Secretary
also submitted FedEx online tracking reports for three of the penalty assessments at issue.

The
Secretary further states that Stommes never responded to any of the delinquency notices, and the
only payments received by MSHA over the past several years have been made through the
Treasury collection efforts.

Moreover, the Secretary notes that Stommes filed its reopening request over seven
months to two-and-a-half years after the proposed assessments became final Commission orders.
Finally, the Secretary states that the operator’s delinquency record, which shows that it has
repeatedly disregarded final penalty assessments, indicates that it has not acted in good faith.

Stommes has not replied to the Secretary’s opposition to its motion. Stommes’ sole
ground in seeking relief from the final order in proposed assessment No. 000248171 (as in Nos.
000186661, 000236955, and 000230600) is that it did not receive the proposed assessments.

However, in light of the Secretary’s unrebutted evidence in the form of a FedEx tracking slip that
proposed assessment No. 000248171 was delivered and signed for on March 8, 2011 by L.
Miller, we conclude that Stommes has failed to prove that the assessment was not properly
delivered, and we thus conclude the operator received the assessment.

Regarding Stommes’ failure to respond to the Show Cause Order in LAKE 2011-627-M,
proposed assessment No. 000250674, Commission records include a United States Postal Service
receipt indicating that the show cause order was received on August 26, 2011. Stommes’ failure
to respond to the Chief Judge’s show cause order rendered it a default order. Stommes has
provided no good reason to reopen it.

Finally, it is well recognized in federal jurisprudence that the issue of whether the movant
acted in good faith is an important factor in determining the existence of excusable neglect.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); FG
Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006).
Likewise, the Commission has recognized that a movant’s good faith, or lack thereof, is relevant
to a determination of whether the movant has demonstrated mistake, inadvertence, surprise or
excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure.
M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3 FMSHRC
314, 315 (Feb. 1981). Stommes’ failure to respond to the Secretary’s argument that Stommes’
delinquency record demonstrates bad faith provides additional support for our conclusion that
Stommes has not met its burden of establishing entitlement to extraordinary relief.

Having reviewed Stommes’ requests and the Secretary’s responses, we conclude that
Stommes has failed to establish good cause for reopening the proposed penalty assessments and
vacating the Default Order. Accordingly, we deny its motions with prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Randy Stommes, CEO

Stommes Construction

8137 Old Hgwy. Road North

St. Cloud, MN 56301

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

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

Washington, D.C. 20001-2021