Johnson Construction Materials (Commission decision, February 17, 2011)

Plain-English summary

Johnson Construction Materials asked the Commission to reopen an assessment it did not receive on time after relocating its office. A business at the former location had signed for Johnson's mail but did not forward it. The Secretary did not oppose reopening but noted that operators must keep their MSHA address of record current. The Commission reopened the assessment in the interests of justice, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days. It also told Johnson to ensure that the correct address was on file with the MSHA district office.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. §§ 801 and 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: Mail delivery problems during an office move supported reopening, but the operator remained responsible for updating its MSHA address.

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

February 17, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

JOHNSON CONSTRUCTION MATERIALS

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Docket No. LAKE 2011-96-M

A.C. No. 12-02265-225455

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 October 27, 2010, the Commission received from Johnson Construction Materials (“Johnson”) a letter requesting 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 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).

Johnson requests reopening of Proposed Assessment No. 000225455, dated July 8, 2010, because it did not receive the assessment on a timely basis. According to Johnson, it relocated its offices that month, and a business with which it shared the former location has been signing for its mail there but not forwarding it. The Secretary does not oppose reopening, but states that it is the operator’s responsibility to keep its address of record current with the MSHA district office.

Johnson includes its new address in its letter requesting reopening. Johnson should ensure that its current address is on file with the applicable MSHA district office, which in this instance is in Duluth, Minnesota.

Having reviewed Johnson’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. 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.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Scott D. Alexander, CEO

Johnson Construction Materials

P.O. Box 443

Columbus, IN 47201

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