Elmore Sand and Gravel, Inc.

Plain-English summary

Elmore Sand and Gravel's proposed penalty assessment became a final Commission order when it was not contested within 30 days. The company's safety director was recovering from a head injury and experiencing short-term memory problems. He became confused when a later assessment referenced the first as outstanding and believed the later document created a new 30-day contest period. Elmore hired counsel immediately after the original deadline, and counsel discovered the error and filed to reopen that same day. The Secretary did not oppose the request. The Commission reopened the assessment in the interests of justice and remanded, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded, with the Secretary ordered to file a penalty petition within 45 days.
• Key point: Prompt action after a medically affected employee's documented deadline confusion can support reopening an otherwise final penalty assessment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 10, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

v.

ELMORE SAND AND GRAVEL, INC. 

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Docket No. SE 2012-112-M

A.C. No. 01-01138-270663

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On December 12, 2011, the Commission received from
Elmore Sand and Gravel, Inc. (“Elmore”) 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) 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 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 mistake, inadvertence, or excusable neglect.
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).

The record indicates that Proposed Assessment No. 000270663 was delivered to Elmore
on November 8, 2011, and became a final order of the Commission on December 8, 2011.
Elmore asserts that its safety director is recovering from a head injury and is suffering short term
memory problems. The safety director states that he became confused when he received a second
assessment, case No. 000273381, which referenced Assessment No. 000270663 as outstanding.
Because the second assessment was dated November 29, 2011, the safety director believed he
had 30 days from that date to contest the outstanding assessment. Elmore hired counsel on
December 9, 2011, who discovered the error and filed this motion to reopen that same day. The
Secretary does not oppose the request to reopen, and urges the operator to take steps to ensure
that all penalty contests are timely filed.

Having reviewed Elmore’s request and the Secretary’s response, in the interests 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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, 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

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. 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