Secretary of Labor v. Charles Reckner, Jr., employed by Buck Run Aggregates

Plain-English summary

Charles Reckner did not separately contest a proposed individual penalty under section 110(c) because he believed the mine operator's contest covered his assessment. His individual assessment therefore became a final Commission order, while the operator timely contested its own assessment. The Secretary did not oppose reopening and confirmed that the operator's case had proceeded to a proposed settlement. The Commission reopened Reckner's assessment in the interest of justice and remanded it for merits proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.26, 2700.27, and 2700.28
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: An individual section 110(c) respondent must contest his own assessment, but confusion with the operator's related contest may support reopening when the Secretary does not oppose relief.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

CHARLES RECKNER, JR., employed by BUCK RUN AGGREGATES

:

:

:

:

:

:

:

Docket No.

A.C. No.

LAKE 2013-567-M

33-04318-299531 A

BEFORE: Nakamura, Acting Chairman; Cohen and Althen,
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. (2012) (“Mine Act”). On July
16, 2013, the Commission received a motion 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.

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 orders, the Commission
has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under
which the Commission may relieve a party from a final order of the Commission
on the basis of mistake, inadvertence, excusable neglect, or other reason
justifying relief. 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).

Records of the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) indicate that the proposed assessment was
delivered on September 6, 2012, signed for by C. Reckner, and became a final
order of the Commission on October 9, 2012. Reckner asserts that he was not
aware that he had to contest his individual assessment separately from the
operator’s assessment. The Secretary does not oppose the request to reopen and
confirms that the operator’s assessment was contested and a Motion to Approve
Settlement was filed in that case on July 24, 2013.

Having reviewed
this request and the Secretary’s response, in the interest 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.

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F.
Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner