Secretary of Labor, MSHA v. Rocky Point Rock, Inc. (Commission decision, January 23, 2014)

Plain-English summary

Rocky Point Rock asked the Commission to reopen a penalty assessment that had become final after the company failed to contest it within 30 days. The operator said it mistakenly believed that it had contested the citations and never checked with counsel. The Secretary opposed reopening and noted that MSHA sent a delinquency notice and later referred the debt to Treasury. The Commission held that a motion based on mistake, inadvertence, or excusable neglect must be filed within one year of the final order. Rocky Point filed after that deadline, so its motion was denied with prejudice.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Rocky Point's motion to reopen the final assessment was denied with prejudice as untimely.
• Key point: A mistaken belief that citations were contested does not overcome the one-year deadline for reopening based on mistake or excusable neglect.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

January
23, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROCKY POINT ROCK, INC.

Docket No. SE 2013-420-M

A.C. No.
40-03223-266215

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On May 30, 2013, the Commission received from Rocky Point Rock, 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on September 14, 2011, and became a final order of the Commission on October 14, 2011. Rocky Point asserts that it mistakenly thought it had contested the citations in this assessment and never contacted counsel to verify the contest. The Secretary opposes the request to reopen and notes that a delinquency notice was mailed to the operator on November 29, 2011, and the case was referred to the U.S. Department of Treasury for collection on March 22, 2012.

Due to the extraordinary nature of reopening a penalty that has become final, the operator has the burden of showing that it should be granted such relief through a detailed explanation of its failure to timely contest the penalty and any delays in filing for reopening. The Commission considers the entire range of factors relevant to determining mistake, inadvertence, excusable neglect, or other good faith reason for reopening. Further, Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b) motion shall be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable neglect, not more than one year after the judgment, order, or proceeding was entered or taken. Fed. R. Civ. P. 60(c).

This motion to reopen was filed more than one year after becoming a final order. Therefore, under Rule 60(c), Rocky Point’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

Accordingly, we deny Rocky Point’s motion with prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/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

/s/ William I. Althen

William I. Althen, 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