Secretary of Labor v. Barnhill Contracting Company (Commission decision, May 18, 2015)

Plain-English summary

Barnhill Contracting contested an MSHA citation but did not separately contest the later proposed penalty assessment. The company said it was unfamiliar with the two-step process and failed to send the assessment to counsel. Barnhill attributed the mistake to inexperience because this was the first citation it had contested in seven years. The Secretary did not oppose reopening but urged the operator to adopt procedures for meeting future 30-day assessment deadlines. The Commission reopened the final assessment in the interest of justice and remanded the matter for further proceedings, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: An inexperienced operator's failure to understand that a proposed assessment requires a separate contest may support reopening when the Secretary does not oppose.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. SE 2014-402-M

v.                                              
 :        A.C. No. 31-02196-348242     

:                   

BARNHILL
CONTRACTING COMPANY              :

BEFORE:
Jordan, Chairman; Young, Nakamura, and Althen, Commissioners[1]

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 July 14, 2014, the Commission received from Barnhill Contracting Company (“Barnhill”) 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 April 21, 2014, and became a final order of the Commission on May 21, 2014. Barnhill asserts that, although it contested the citation, it was unfamiliar with Mine Act’s requirement for operators to also contest MSHA’s proposed assessments. As a result, Barnhill neglected to forward the proposed assessment to its counsel. Barnhill contends that its mistake was attributable to its inexperience in contesting citations, as this was the first citation that it has contested in the last seven years. The Secretary does not oppose the request to reopen. However, he urges the operator to take steps to ensure that future penalty contests are timely contested within 30 days of receipt.

Having
reviewed Barnhill’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/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Patrick K.
Nakamura

Patrick K. Nakamura,
Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] Commissioner
Cohen has elected not to participate in this matter.