Mosaic Phosphates Company (Commission decision, November 13, 2006)

Plain-English summary

Mosaic Phosphates returned a penalty contest form that specifically marked one citation but also stated that it wanted a formal hearing on all listed violations. MSHA did not open a contest for the unmarked citation, and its penalty became a final Commission order. Mosaic said it intended to contest both citations, and the Secretary did not oppose reopening. The Commission remanded for the chief judge to determine whether Mosaic had good cause for the filing error and whether relief from the final order should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for findings on good cause and possible relief from the final penalty order.
• Key point: An inconsistent contest form may support reopening when it shows an intent to contest all listed violations.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 13, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MOSAIC PHOSPHATES COMPANY

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Docket No. SE 2007-10-M

A.C. No. 08-01117-91378

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On October 12, 2006, the Commission received from Mosaic Phosphates Company (“Mosaic”) a motion by counsel 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).

On June 19, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment to Mosaic for Citation Nos. 6073698 and 6073705. On July 17, 2006, Mosaic mailed to MSHA the penalty contest form. On the form, Mosaic’s assistant vice president for safety and health checked the box next to Citation No. 6073705, indicating that it wished to contest the penalty for that citation, but did not check the box next to Citation No. 6073698. However, Mosaic states that it actually intended to contest the assessments relating to both citations, as indicated by also checking a box on the contest form stating that it wanted “to contest and have a formal hearing on all violations listed in the Proposed Assessment(s).” MSHA did not open a contest on the assessment arising from Citation No. 6073698. The Secretary states that she does not oppose Mosaic’s request to reopen the penalty assessment.

We have held 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 inadvertence or mistake. 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).

Having reviewed Mosaic’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Mosaic’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Henry Chajet, Esq.

Patton Boggs, LLP

2550 M Street NW

Washington, DC 20037-1350

Peter Gould, Esq.

Patton Boggs LLP

1660 Lincoln St., Suite 1900

Denver, CO 80264

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

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