Secretary of Labor v. Rocky Point Rock Quarry, Inc.

Plain-English summary

Rocky Point missed its penalty-contest deadline because administrative staff left mail addressed to the company president unopened on his desk while he was away. The company changed its procedures to allow administrative staff to open MSHA correspondence and avoid future missed deadlines. The Secretary did not oppose reopening but warned that she might oppose similar motions in the future. The Commission reopened the final assessment in the interests of justice and remanded it for penalty proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A missed assessment caused by restrictive mail-handling procedures supported reopening after the operator changed those procedures.

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, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROCKY POINT ROCK QUARRY, INC.

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Docket No. SE 2012-489-M
A.C. No. 40-03223-280453

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 May 22, 2012, the Commission received from Rocky Point
Rock Quarry, Inc. (“Rocky Point”) 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 Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) record
indicates that the proposed assessment was delivered on February 15, 2012, and became a final
order of the Commission on March 16, 2012. Rocky Point asserts that while its president was
out of the office, the administrative personnel left any mail addressed to the president on his
desk. Rocky Point further states that it has changed future procedures to permit administrative
personnel to open MSHA correspondence in an effort to avoid late or missed filing deadlines.
The Secretary does not oppose the request to reopen, and notes that MSHA mailed a delinquency
notice on May 1, 2012. The Secretary cautions that she may oppose future motions to reopen
penalty assessments that are not contested in a timely manner.

Having reviewed Rocky Point’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:

Justin Winter, 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

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

Washington, D.C. 20004-1710