Secretary of Labor v. Lance R. Battersby

Plain-English summary

Lance Battersby filed an individual section 110(c) penalty contest 17 days after the assessment became final. He said a move to Pennsylvania caused delays in forwarding his mail, and later delinquency notices were returned undelivered. MSHA eventually transferred the debt to the Department of Treasury and communicated with Battersby before he sought reopening. The Secretary did not oppose relief and confirmed receipt of the late contest. The Commission reopened the assessment in the interests of justice and remanded it for penalty proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.26, 2700.27, and 2700.28
• Outcome: The final individual penalty assessment was reopened and remanded.
• Key point: Mail-forwarding problems during a move supported reopening of an individual penalty when MSHA had received the late contest and did not oppose relief.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

May 30, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

LANCE R. BATTERSBY
:
:
:
:
:
:
:

Docket No. PENN 2012-445-M
A.C. No. 36-05508-270605
A

BEFORE: Jordan, Chairman;
Young and Nakamura, 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 September 19, 2012, the Commission received a
motion seeking to reopen a penalty
assessment under section 110(c) of
the Mine Act, 30 U.S.C. § 820(c), that had become a final order of
the Commission.

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. 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).

MSHA’s record indicates that the
proposed assessment was delivered on November 7, 2011, signed for by Lance
Battersby, and became a final order of the Commission on December 7, 2011.
Mr. Battersby filed a late notice of contest on December 24, 2011. The
Secretary does not oppose the request to reopen and confirms that MSHA received
the late notice of contest. Mr. Battersby asserts that due to his move to
Pennsylvania, his mail was not being forwarded in a timely manner. MSHA records
show that delinquency notices mailed on January 5 and 24, 2012, were returned
undelivered. MSHA transferred this case to the Department of Treasury for
collection on May 10, 2012, and was thereafter in email contact with Mr.
Battersby between June and September, 2012, prior to his filing this motion to
reopen. The Secretary urges Mr. Battersby to take steps to ensure that future
penalty contests are timely filed.

Having
reviewed this 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.

/s/ Mary
Lu Jordan

Mary Lu Jordan, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

Lance R. Battersby

Route 1, Box 30 N

Peterstown, WV 24963

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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

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

Washington, D.C. 20004-1710