Secretary of Labor v. Lewis Johnson, employed by Elmore Sand and Gravel, Inc.

Plain-English summary

MSHA mailed Lewis Johnson an individual section 110(c) penalty assessment four days after he left Elmore Sand and Gravel. The mailing was returned unclaimed, and Johnson said he did not remember receiving it. The Secretary did not oppose Johnson's request to reopen. The Commission held that the assessment never became final because Johnson had not received it, so reopening was unnecessary. It denied the motion as moot and remanded the matter for a penalty proceeding.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.26 and 2700.28
• Outcome: The reopening motion was denied as moot because the assessment was not final, and the matter was remanded.
• Key point: An individual section 110(c) assessment does not become final when the proposed assessment was never received.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

May 30, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

LEWIS JOHNSON, employed
by
ELMORE SAND AND GRAVEL, INC.
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Docket No. SE 2013-68-M
A.C.
No. 01-01138-279202
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 November 2, 2012, the Commission received 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. MSHA’s records indicate that the
proposed assessment was mailed on January 31, 2012 and was returned unclaimed.
MSHA mailed a delinquency notice on May 17, 2012. Mr. Johnson asserts that he
left his employment with Elmore Sand and Gravel, Inc. on January 27, 2012, and
has no recollection of receiving the assessment. The Secretary does not
oppose the request to reopen.

Having
reviewed this request and the Secretary’s response, we conclude that the
above-captioned assessment has not become a final order of the Commission
because it was never received by Mr. Johnson. Accordingly, we deny the request
to reopen as moot and remand this matter 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 civil 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