Secretary of Labor v. Jay Fulkroad & Sons, Inc. (Commission decision, May 4, 2018)

Plain-English summary

Jay Fulkroad & Sons contested the underlying citation but did not understand that it also had to contest the later proposed penalty assessment. It made a partial payment and, after receiving a delinquency notice, contacted the Commission the next day for an explanation. The operator had filed no other reopening motions during the prior two years, and the Secretary agreed that it acted promptly and did not oppose relief. The Commission treated the missed penalty contest as a mistake, reopened the final order, and remanded for a penalty petition and merits proceedings.

Decision snapshot

• Cited authority: Section 105(a) of the Mine Act, 30 U.S.C. § 815(a)
• Outcome: The penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Prompt action can support reopening when a small operator timely contests a citation but mistakenly overlooks the separate requirement to contest the proposed penalty.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)        

v.

JAY
FULKROAD & SONS, INC.

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:

:

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Docket
No. PENN 2018-33-M

A.C.
No. 36-05666-437268

BEFORE:  Althen,
Acting Chairman; Jordan, 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. (2012) (“Mine Act”). On October 16, 2017, the Commission received from Jay Fulkroad & Sons, Inc. (“Jay Fulkroad”) 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), 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).

Jay
Fulkroad asserts that it contested the initial citation, but was unaware that it needed to contest the proposed penalty as well. [1] Records of the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was mailed on May 3, 2017. The operator subsequently made a partial payment for the assessment on May 27, 2017. MSHA delivered a delinquency notice to the operator on August 28, 2017. Jay Fulkroad sent a letter to the Commission the next day, seeking an explanation. The Secretary notes, “[a]lthough the operator did not immediately file a motion to reopen, it did promptly take action in response to the delinquency notice.” Jay Fulkroad has not filed any other motions to reopen with the Commission in the last two years. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed Jay Fulkroad’s request and the Secretary’s response, we find that mistakenly failed to contest the penalty after contesting the underlying citations. 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/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Gerald
Fulkroad, Sr.

President

Jay
Fulkroad & Sons, Inc.

2736
Free Spring Church Rd.

McAlistersville,
PA 17049

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] The contest is
docketed as PENN 2017-159-M and is currently pending before a Commission ALJ.