Copperstate Companies, Inc. (Commission decision, August 10, 2007)

Plain-English summary

Copperstate Companies sought to reopen a penalty assessment that became final when it was not contested within 30 days. The company said it intended to appeal, but MSHA sent the assessment for its Alabama facility to an Arizona office where it was not expected. Copperstate discovered the omission only after receiving a demand for payment, and the Secretary did not oppose reopening. The Commission explained that mistake or inadvertence may justify relief from a final assessment if the operator shows good cause. It remanded the matter for the Chief Administrative Law Judge to evaluate Copperstate's explanation and decide whether the penalty case should proceed on the merits.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b) and 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for a good-cause determination.
• Key point: An assessment sent to an unexpected company office may support reopening, but the operator must establish good cause for missing the contest deadline.

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

August 10, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

COPPERSTATE COMPANIES, INC.

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Docket No. SE 2007-308-M
A.C. No. 01-00003-114104 VAU

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 July 5, 2007, the Commission received from Copperstate Companies, Inc. (“Copperstate”) a letter 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 March 22, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment to Copperstate covering Citation No. 7765264, which involved its Shelby, Alabama facility. In its letter, Copperstate alleges that it intended to appeal the proposed penalty assessment but that the assessment was sent to its Mesa, Arizona office, where it was not expected. Copperstate further asserts that it realized its inadvertence in not contesting the penalty assessment when it received a demand to pay the civil penalty. In response, the Secretary states that she does not oppose reopening the proposed 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 Copperstate’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 Copperstate’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

Gary Robar, Safety Director

Copperstate Companies, Inc.

4151 East Quartz Circle

Mesa, AZ 85215

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

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