Secretary of Labor v. Dyer Quarry, Inc. (Commission decision, December 29, 2015)

Plain-English summary

Dyer Quarry did not timely contest a proposed penalty assessment, so the assessment became a final Commission order. The operator said it never received the assessment because its address had changed. Dyer later updated its address of record with MSHA, and the Secretary did not oppose reopening, although he stressed that operators must notify MSHA of address changes and file future contests on time. The Commission reopened the assessment in the interest of justice, remanded the matter for further proceedings, and ordered the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Nonreceipt caused by an address change supported reopening after the operator corrected its address of record and the Secretary did not object.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. PENN 2015-113-M        

v.                                              
 :        A.C. No. 36-00064-367879

:                   

DYER
QUARRY, INC.                                  :

BEFORE:
Jordan, Chairman; Young and Althen, Commissioners[1]

ORDER

BY THE
COMMISSION:

This matter
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.    § 801 et seq. (2012) (“Mine Act”). On January 21, 2015, the Commission received from Dyer Quarry, Inc. (“Dyer”) 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 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) demonstrate that an attempted delivery of the proposed assessment occurred on December 6, 2015, and became a final order of the Commission on January 5, 2015. The operator asserts that it did not receive the proposed assessment because of a change in address. The operator has since changed its address of record with MSHA to ensure that mail is delivered to the proper address. The Secretary does not oppose the request to reopen. However, he notes that it is Dyer’s obligation to notify MSHA of any change of address. He urges Dyer to take steps to ensure that future penalty contests are timely filed.

Having
reviewed Dyer’s
request and the Secretary’s response, in the interest 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, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen.  30 U.S.C. § 823(c).