Secretary of Labor v. Seymour Stone (Commission decision, January 12, 2010)

Plain-English summary

Seymour Stone sought to contest penalties for six citations and one order. It apparently sent the contest to a local MSHA district office within the 30-day deadline instead of the Civil Penalty Compliance Office in Arlington, Virginia. The Secretary did not oppose reopening but noted the filing instruction on the assessment form. The record showed no prior occasion when Seymour had sent a contest to the wrong address. The Commission reopened the assessment, remanded the case, and ordered the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A first-time contest apparently mailed on time to a local MSHA office may be reopened despite the assessment form's Arlington address.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 12, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

SEYMOUR STONE

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Docket No. PENN 2010-51-M

A.C. No. 36-09754-189609

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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. (2006) (“Mine Act”). On October 19, 2009, the Commission received from Seymour Stone (“Seymour”) a request 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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”) issued Proposed Assessment No. 000189609 to Seymour on June 30, 2009, proposing penalties for six citations and an order that had been issued to Seymour the previous month. Seymour appears to have sent its contest of all seven penalties to the local MSHA district office. The Secretary of Labor does not oppose reopening, but states that the proposed assessment form instructs that notices of contest are to be mailed to MSHA’s Civil Penalty Compliance Office in Arlington, Virginia.

The Secretary correctly points out that the proposed assessment form specifies that contests of proposed penalties are to be sent to the Arlington office. Nevertheless, we note that Seymour appears to have sent its contest to the local MSHA district office within the 30-day period for contests, and there is no indication that Seymour has previously sent contests to the wrong address.

Having reviewed Seymour’s request and the Secretary’s response, in the interests 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.

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Mary Lu Jordan, Chairman

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Michael F. Duffy, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

Scott R. Fressenden

Seymour Stone

64 Fessenden Rd.

Roulette, PA 16746

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021