Secretary of Labor v. New Point Stone Co., Inc.

Plain-English summary

New Point Stone timely prepared notices contesting portions of two proposed penalty assessments. For each assessment, it mistakenly sent the contest notice with a partial payment to MSHA's payment address instead of mailing the notice to the separate contest address. The Secretary did not oppose reopening but urged the operator to improve its future filing process. The Commission found excusable neglect, reopened both consolidated matters, and remanded for the Secretary to file penalty petitions within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Both final assessments were reopened and remanded for further penalty proceedings.
• Key point: Timely contest notices mistakenly sent to the penalty-payment address supported reopening both assessments.

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.

NEW POINT STONE CO.,
INC.                                                                 

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Docket
No. LAKE 2022-0071

A.C.
No. 12-00038-541770

Docket
No. LAKE 2022-0072

A.C.
No. 12-00115-543456

BEFORE:   
Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”).  On January 13, 2022, the Commission received
from New Point Stone Co., Inc. (“New Point”) 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).  In addition, on January 14,
2022, the Commission received a second motion to reopen from the same operator. [1]

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).

Regarding
LAKE 2022-0071, records of the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) indicate that the proposed assessment was delivered on September
17, 2021, and became a final order of the Commission on October 18, 2021.  The
Secretary also provides a copy of a delinquency notice issued to the operator
on December 28, 2021.  New Point asserts that, on approximately September 30,
2021, it mistakenly sent both its notice of contest and a partial penalty
payment to the address for the payment of penalties, instead of correctly mailing
the notice of contest to a separate address, as required by MSHA.  Similarly, concerning
LAKE 2022-0072, MSHA records indicate that the proposed assessment was
delivered on October 6, 2021, and became a final order of the Commission on November
5, 2021, and the operator makes the same assertion that, on approximately October
30, 2021, it mistakenly sent its notice of contest to the wrong address.  The
Secretary does not oppose the requests to reopen, but urges the operator to
take steps to ensure that future penalty contests are timely filed. 

Having
reviewed New Point’s requests and the Secretary’s responses, we find
that the operator acted with excusable neglect in both matters by inadvertently
mailing the notices of contest to the wrong address, despite doing so in a
timely manner.  In the interest of justice, we hereby
reopen these matters and remand them 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 petitions for assessment of penalties within 45 days of
the date of this order.  See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution (by
email):

Kenneth Wanstrath,
President

Harrison Sand
& Gravel Co., Inc.

992 South County
Road 800 East

Greensburg, IN
472408854

[email protected]

Emily Toler Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

April Nelson, Esq.
Associate Solicitor

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

U.S. Department of
Labor Office of Assessments

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520 N

Washington, DC
20004-1710

[email protected]

[1] For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket
numbers LAKE 2022-0071 (involving the motion received on January 13, 2022) and LAKE
2022-0072 (involving the motion received on January 14, 2022) because they
involve similar factual and procedural issues.  29 C.F.R. § 2700.12.