H & K Materials, Inc.

Plain-English summary

H & K Materials promptly sent a proposed penalty assessment to counsel for contest. Counsel missed the deadline because the paralegal responsible for filing was experiencing a serious personal problem, despite the firm's otherwise adequate docketing system. After discovering the error, counsel contacted the Solicitor's Office and sought employment-law advice about protecting the employee's private information. The Secretary did not oppose reopening. The Commission reopened the assessment, remanded it for a penalty proceeding, and granted the motion to file personal employee information under seal.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded, and the motion to file under seal was granted.
• Key point: A documented personal emergency affecting the responsible filing employee may support reopening when the operator and counsel otherwise acted diligently.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 22, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

H & K MATERIALS, INC.

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Docket No. PENN 2012-83-M
A.C. No. 36-08294-267176

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 January 6, 2012, the Commission received from Penn
MD Materials/Div. Haines & Kibblehouse, Inc. (“H&K”) 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 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 became a final order of the
Commission on October 21, 2011. H&K asserts that it promptly sent the proposed assessment to
its counsel for contest on September 26, 2011. H&K’s counsel states that it failed to file a timely
contest because, although the law firm has an adequate docketing system in place, the paralegal
responsible for filing had been suffering from a serious personal problem which prevented the
paralegal from timely submitting the contest. Upon discovering this failure to contest, counsel
states that it contacted the Solicitor’s Office, and also contacted an employment counsel to
address privacy concerns and legal limitations before filing this motion to reopen. The Secretary
does not oppose the request to reopen, and urges counsel to take all steps necessary to ensure that
future penalty contests are processed in a timely manner.

Having reviewed H&K’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. H&K’s motion to file
under seal to protect personal employee information is also hereby granted.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Henry Chajet, Esq.

Patton Boggs, LLP

2550 M Street NW

Washington, DC 20037-1350

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

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

Washington, D.C. 20001-2021