Secretary of Labor v. R.E. Pierson Materials Corp. (Commission decision, September 23, 2023)

Plain-English summary

R.E. Pierson received two proposed assessments, but mine administrative staff did not forward them to the operations manager for review and processing. The company discovered the errors only after MSHA sent delinquency notices and then contacted outside counsel. It reported taking corrective measures to prevent another mail-processing failure. The Secretary did not oppose relief. The Commission found inadvertence, reopened both assessments, and remanded the cases.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Both final assessments were reopened and remanded.
• Key point: Clerical mail-routing errors supported reopening when the operator corrected the process and the Secretary did not oppose.

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.

R.E.
PIERSON MATERIALS CORP.

:

:

:

:

:

:

:

Docket
No. PENN 2022-0105

A.C.
No. 36-00111-552721

Docket
No. PENN 2022-0106

A.C.
No. 36-07480-551092

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY THE COMMISSION:

        These

matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On July 19, 2022, the Commission received from R.E. Pierson Materials Corp. (“R.E. Pierson”) two motions seeking to reopen penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

        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”) indicate that the proposed assessment for PENN 2022-0105 was delivered on April 13, 2022, and became a final order of the Commission on May 13, 2022. MSHA also issued a delinquency notice to the operator on June 28, 2022. Regarding PENN 2022-0106, MSHA records indicate that the proposed assessment was delivered on March 18, 2022, and became a final order of the Commission on April 18, 2022. MSHA issued a delinquency notice on June 2, 2022.

R.E. Pierson admits that it received the
proposed assessments at issue. However, it asserts that the mine’s administrative staff failed to forward the proposed assessments to the Mine Operations Manager for review and processing, due to clerical errors in processing the mail. According to R.E. Pierson’s Mine Operations Manager, the operator discovered the errors only after receiving MSHA’s delinquency notices. The operator then contacted its outside counsel to submit the motions to reopen. R.E. Pierson also asserts that it has taken corrective measures to prevent any future occurrence of this error. The Secretary does not oppose the requests to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed R.E. Pierson’s requests and the
Secretary’s responses, we find that the operator inadvertently failed to forward the contest forms to the mine’s management. In the interest of justice, we hereby reopen these matters and remand them 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, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Adele
L. Abrams, Esq.

CMSP,
Law Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] The operator
submitted its motion to reopen in PENN 2022-0105 in response to the Commission’s August 31, 2023 Order to Show Cause. For the limited purpose of addressing these motions to reopen, we hereby consolidate docket numbers PENN 2022-0105 and PENN 2022-0106 because they involve similar factual and procedural issues. 29 C.F.R. § 2700.12.