Secretary of Labor v. U.S. Coating Applicators, LLC (Commission decision, November 30, 2015)

Plain-English summary

MSHA's first mailing of a proposed penalty assessment to U.S. Coating Applicators was returned undelivered. MSHA mailed it again, but the operator said it still did not receive the assessment and produced postal tracking showing that it had not signed for the delivery. The Secretary did not oppose reopening but urged the operator to handle future contests on time. The Commission reopened the final assessment in the interest of justice and remanded it for further proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A returned first mailing and unsigned tracking for the second mailing supported the operator's claim that it did not receive the assessment.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),       

v.

U.S.
COATING APPLICATORS, LLC,

:

:

:

:

:

:

:

Docket
No. LAKE 2014-576-M

A.C.
No. 21-03404-345801 7JQ

BEFORE:  Jordan,
Chairman; Young, Nakamura, and Althen, Commissioners[1]

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 1, 2014, the Commission received from U.S. Coating Applicators, LLC (“U.S. Coating”) a motion 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).

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 mailed on March 18, 2014 and was returned undelivered. MSHA re-mailed the proposed assessment on April 7, 2014 and it was delivered on April 12, 2014. The proposed assessment became a final order of the Commission on May 12, 2014. U.S. Coating asserts that it failed to timely contest the proposed assessment because it did not receive it. U.S. Coating further asserts that the USPS tracking document confirms that it did not sign for the proposed assessment. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed U.S. Coating’s 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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Justin
M. Winter, Esq

Law
Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] Commissioner
Cohen has elected not to participate in this matter.