Secretary of Labor v. Roger J. Rohloff, employed by Daanen & Janssen, Inc.

Plain-English summary

MSHA assessed an individual penalty against Roger Rohloff under section 110(c) after a rock-fall investigation. The certified mailing was returned unclaimed, even though an MSHA representative had agreed to send all correspondence for Rohloff to his counsel. Rohloff and his counsel learned of the assessment during a later status conference and sought to reopen it. The Commission held that an individual assessment does not become final without actual notice and found that MSHA failed to provide the notice required by its procedural rule. It ruled that no final order existed and remanded the case for assignment to an ALJ.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(c)
• Outcome: The assessment was held nonfinal, and the case was remanded for proceedings before an ALJ.
• Key point: A section 110(c) assessment does not become final when MSHA fails to give the charged individual actual notice.

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.
: Docket No. LAKE 2024-0014

: A.C. No. 47-00028-00574809A

ROGER J. ROHLOFF, employed by :

DAANEN & JANSSEN, INC. :

BEFORE: Jordan, Chair; Baker and Marvit,
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. (2018) (“Mine Act”). On October 12, 2023, the Commission received
from Roger J. Rohloff, employed by Daanen and Janssen, Inc. (“Daanen”) a motion
seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30
U.S.C. § 820(c), that had appeared to become a final order of the Commission.[1]

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).

The Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicates that the U.S. Postal Service attempted delivery of the
proposed assessment via certified mail on April 17, 2023, and a notice was left
as there was no authorized recipient available. The assessment was then mailed
to Rohloff’s address, but later returned to MSHA as “unclaimed.” The assessment
became a final order of the Commission on May 17, 2023.

On February 11, 2022, following a rock fall incident at a mine
operated by Daanen & Janssen, Inc., MSHA issued three citations to Daanen
and two citations to miner Roger Rohloff under section 110(c) of the Mine Act. Counsel
for Rohloff notes that during the section 110(c) investigation, the complaint
processer for MSHA reached out and confirmed Rohloff’s address and that MSHA
would send all communication regarding its investigation of Mr. Rohloff to his
counsel. However, counsel for Rohloff and Daanen states that it was not until
an August 30 status
conference before a Commission ALJ that he was first informed of the assessment and that it had become a
final order. Rohloff’s Counsel states
that during the conference MSHA’s Counsel “said that she would look into the
matter and get back to [them] with more information,” which MSHA’s counsel did
on September 5, 2023. MTR at 3. Counsel for Rohloff maintains that neither Daanen
nor Rohloff received the penalty assessment and still had not received a copy
at the time of filing this motion. He asserts that Rohloff only received
“particular notice” on September 5 and that he timely mailed his motion to
reopen on October 4, 2023—29 days later.

Rohloff’s
counsel argues that leaving a general Postal Service notice at Rohloff’s
address that unidentified mail from an unidentified party is waiting at the
post office does not constitute proper service of the assessment or receipt
that would start the clock to file a notice of contest. He further asserts that
MSHA cannot prove that the Postal Service actually left a notice. Counsel notes
that Rohloff acted in good faith and had been watching for the assessment. Had
he received the notice, he would have retrieved the assessment because he had
no incentive to delay the progress of the case. In fact, the ALJ stayed the
underlying citation cases so that Rohloff’s pending 110(c) assessment could be
consolidated with the citation cases, which all have meritorious defenses. Counsel
maintains that Rohloff’s delay in contesting amounts to excusable neglect. It
further argues that although it paid the penalty assessment on December 7,
2023, the case is not moot because Rohloff only paid the citation “to avoid any
wage garnishment, withholding of my tax refunds or adverse impact on my credit
report” as threatened by you U.S. Treasury, Bureau of the Fiscal Service in its
October 31, 2023 letter. Rohloff Ex. A.

The
Secretary opposes the motion arguing that it should be denied as moot because
Rohloff paid the penalties and interest in full. Additionally, MSHA mailed the
proposed assessment to Rohloff’s address, but Rohloff does not claim that he
does not reside at or receive mail at that address, nor has he explained why he
never collected his mail at the post-office. Additionally, Rohloff’s motion to
reopen was not timely because he filed it 43 days after first learning of the
assessment at the August 30, 2023 status conference and 45 days after a
delinquency notice was sent on August 28, 2023. Rohloff does not explain the
delay in filing its motion to reopen.

Commission
Procedural Rule 25 provides, in pertinent part, that the Secretary “shall
notify . . . any other person against whom a penalty is proposed of the
violation alleged.” 29 C.F.R. § 2700.25. Accordingly, a proposed assessment
under section 110(c) does not become a final order within 30 days, if the
manner in which the proposed penalty was delivered to the individual does not
provide him or her with actual notice of the proposed assessment. See Coleman,
employed By Carmeuse Lime and Stone, 33 FMSHRC 1139, 1140 (June 2011)
(finding that a proposed assessment does not become a final order when it was
received and signed for at the mine by another miner but not delivered to the
named miner); Stech, employed by Eighty-Four Mining Co., 27 FMSHRC 891
(Dec. 2005); Beelman Truck Co., 40 FMSHRC 1104, 1104 (Aug. 2018)
(determining assessment had not become final order where assessment was
returned to MSHA as unclaimed and operator had never received it).

In
the Instant matter, the Secretary was aware that Respondent was represented by
counsel. Email correspondence confirms that a representative for MSHA agreed to
send “all correspondence for Mr. Rohloff” to his counsel but ultimately failed
to do so. Rohloff Reply Br. at 34, Ex. B. As such, we conclude that Rohloff was
not provided with notice, as required by Procedural Rule 25, 29 C.F.R. §2700.25.
Accordingly, the proposed assessment is not a final order of the Commission. We
remand this matter to the Chief Administrative Law Judge for assignment to a Judge.
This case shall proceed pursuant to the Mine Act and the Commission’s
Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary
Lu Jordan

Mary
Lu Jordan, Chair

/s/
Timothy J. Baker

Timothy J.
Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Eric E. Hobbs, Esq.

Katlyn Q. McGarry, Esq.

Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.

1243 North 10th Street, Suite
200

Milwaukee, WI 53205

[email protected]

[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]

Emily Toler Scott, Esq.

Counsel for Appellate
Litigation

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

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief Administrative Law
Judge Glynn F. Voisin

Office of the Chief
Administrative Law Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] The Secretary of Labor has filed a motion to amend
the cases caption to properly reflect “Roger J. Rohloff, employed by Daanen
& Janssen, Incorporated” for who this motion is filed and to remove Daanen
& Janssen, as it is not a party to this docket. Consistent with Commission Rule
5(d), 29 C.F.R. § 2700.5(d), the Secretary’s motion to amend the caption is
granted. The caption of this order reflects this change.