DBS, Inc. (Commission decision, October 22, 2008)

Plain-English summary

DBS had contested the citations covered by four proposed penalty assessments but did not separately contest the penalties within 30 days. The company said it did not understand that both steps were required and learned of the final assessments when the Secretary moved to dismiss the citation contests. The Secretary did not oppose reopening. The Commission remanded the matter for the Chief Administrative Law Judge to decide whether the mistake established good cause and whether relief from the final assessment orders should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: Four reopening requests were remanded for a determination of good cause and entitlement to relief.
• Key point: Contesting citations does not also contest the later proposed penalties, but a mistaken understanding of the two-step process can support a good-cause inquiry.

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

October 22, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DBS, INC.

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Docket No. SE 2008-547-M

A.C. No. 38-00233-134567

Docket No. SE 2008-548-M

A.C. No. 09-00721-134513

Docket No. SE 2008-549-M

A.C. No. 09-01015-134514

Docket No. SE 2008-550-M

A.C. No. 09-00955-137103

BEFORE: Duffy, 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. (2000) (“Mine Act”). On April 4, 2008, the Commission received from DBS, Inc. (“DBS”) motions by counsel seeking to reopen four 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).

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).

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued the four proposed penalty assessments to DBS on December 20, 2007, and January 24, 2008. DBS had previously contested the citations contained in those assessments, and the Commission had assigned them the following docket numbers: SE 2008-84-RM, SE 2008-86-RM, SE 2008-87-RM, SE 2008-205-RM, SE 2008-206-RM and SE 2008-207-RM.

DBS asserts that it failed
to realize that it needed to contest the penalty proposals in addition to contesting the citations. It states that it became aware that the proposed assessments became final on March 26, 2008, when it received the Secretary’s Motion to Dismiss the citation contest cases. In response, the Secretary states that she does not oppose the reopening of the penalty assessments.

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 DBS’s motion to reopen and the Secretary’s response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for DBS’s failure to timely contest the penalty proposals and whether relief from the final orders should be granted. If it is determinated 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

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Robert F. Cohen, Jr., Commissioner

Distribution:

Adele L. Abrams, Esq.

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

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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