Secretary of Labor v. Travis Alexander, employed by Tycon Excavating Contractor, Inc.

Plain-English summary

MSHA assessed Travis Alexander personally under section 110(c) of the Mine Act, but he did not timely contest the proposed penalty and it became a final Commission order. Alexander said he never received the assessment or delinquency notice because MSHA mailed both to the wrong address. The Secretary did not oppose reopening and confirmed that the proposed assessment had been returned undelivered. The Commission reopened the matter in the interests of justice and remanded it for penalty proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.26 through 2700.28
• Outcome: The final individual penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A returned individual assessment mailed to the wrong address supported reopening when the Secretary did not oppose relief.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 14, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

TRAVIS ALEXANDER, employed by TYCON

EXCAVATING CONTRACTOR, INC.

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Docket No. SE 2012-439-M
A.C. No. 40-00827-270458 A

BEFORE: Jordan, Chairman; Young 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 April 30, 2012, the Commission received from Travis
Alexander, employed by Tycon Excavating Contractor, Inc. (“Alexander”) a motion seeking to
reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had
become a final order of the Commission.

Under the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.

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).

Alexander asserts that he did not receive the proposed assessment or delinquency notice
because MSHA mailed them to the wrong address. The Secretary does not oppose the request to
reopen, and states that the proposed assessment was returned undelivered to MSHA.

Having reviewed Alexander’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, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

John B. Flood, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street NW, Suite 1000

Washington, DC 20006

[email protected]

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

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710