Secretary of Labor v. Tackett Creek Mining (Commission decision, October 20, 2014)

Plain-English summary

Tackett Creek Mining failed to contest a proposed penalty assessment before it became a final Commission order. The company attributed the missed deadline to a clerical error and said it hired a consultant to prevent future mistakes. The Secretary did not oppose reopening and urged the operator to adopt reliable contest procedures. The Commission reopened the assessment in the interest of justice and remanded it for merits proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: A clerical filing error may support reopening when the operator takes corrective action and the Secretary does not oppose merits review.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C.  20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

v.

TACKETT CREEK MINING

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DocketNo.

A.C. No.

SE 2013-557-M

40-03392-324138

BEFORE:  Nakamura, Acting Chairman; Cohen 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 August 20, 2013, the Commission received from Tackett Creek Mining (“Tackett”) 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 June 13, 2013, and became a final order of the Commission on July 15, 2013.  Tackett asserts that it failed to timely contest the assessment due to a clerical error, and hired a consultant to avoid errors in the future.  The Secretary does not oppose the request to reopen, and urges the operator to adopt procedures to ensure that future penalty contests are timely filed.

Having reviewed
Tackett’s request and the Secretary’s response, in the interest 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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner