Secretary of Labor v. Mid-Illinois Quarry, LLC

Plain-English summary

Mid-Illinois Quarry sought to reopen a penalty assessment after MSHA did not receive a contest notice that the operator said it had mailed on time. MSHA processed the uncontested payment sent from the same assessment a few days later, although the operator had no proof of mailing for the contest. Mid-Illinois moved to reopen within a week after receiving a delinquency notice. The Secretary did not oppose the request or dispute the operator's explanation. The Commission found mistake, inadvertence, and excusable neglect, also noting that the self-represented operator had no recent default history. It reopened the assessment and remanded the matter for further proceedings.

Decision snapshot

• Cited authority: None
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: An apparently timely mailing and a prompt reopening motion supported relief for a self-represented operator without a default history.

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.

MID-ILLINOIS
QUARRY, LLC

:

:

:

:

:

:

:

Docket
No. LAKE 2019-0256

A.C.
No. 11-00098-482588

BEFORE:  Rajkovich,
Chairman; Althen and Traynor, 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 May 21, 2019, the Commission received from Mid-Illinois
Quarry (“Mid-Illinois”) 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 delivered on February 8, 2019, and
became a final order of the Commission on March 11, 2019. Mid-Illinois asserts that
the notice of contest was timely sent on March 3, 2019. (Although the operator
has not provided proof of mailing, records show that MSHA processed payment for
the uncontested citations in the same assessment a few days later on March 8,
2019.) However, the operator received a delinquency notification on May 14,
2019, indicating that MSHA had not received the notice of contest. After contacting
the phone number provided on the delinquency letter, Mid-Illinois filed a
motion to reopen on May 21, 2019. Mid-Illinois posits that MSHA did not receive
the initial notice of contest due to postal service delays, noting that the
delinquency letter (dated April 25) had taken over two weeks to arrive. 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 Mid-Illinois’ motion and
the Secretary’s response, we find that the operator has sufficiently explained
its failure to timely contest the citations at issue as the result of
inadvertence, mistake, and excusable neglect. Mid-Illinois apparently attempted
to timely file the notice of contest, and filed a motion to reopen within a
week of learning that the notice of contest had not been received. We note that
this is a pro se operator with no history of defaults or motions to reopen in
the past 24 months, and that the Secretary does not oppose reopening or dispute
the explanation offered by the operator.

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/ Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

Distribution:

Charles
Heuerman

Member
Manager

Mid-Illinois
Quarry LLC

[email protected]

Emily
Scott, Esq.

Office
of the Solicitor

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

[email protected]