Secretary of Labor v. Empresas Ortiz Brunet, Inc.

Plain-English summary

Empresas Ortiz Brunet failed to submit a penalty-contest form because confusion with other cases led the company to believe the form had already been sent. The company contacted MSHA to resolve the matter a little more than a month after the assessment became final. The Secretary did not oppose reopening but urged the operator to handle future contests on time. The Commission reopened the assessment in the interest of justice and remanded it for further proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Prompt follow-up after discovering case-related confusion can support reopening when the operator reasonably believed a contest had already been filed.

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 2015-144-M

v.                                              
 :        A.C. No. 54-00135-366307 

:                                        

EMPRESAS
ORTIZ BRUNET, INC.              :

BEFORE:
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 January 21, 2015, the Commission received from Empresas
Ortiz Brunet, Inc. (“Empresas”) 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”) demonstrate
that the proposed assessment was delivered on November 10, 2014, and became a
final order of the Commission on December 10, 2014. Empresas asserts that its
failure to timely submit the contest form arose from its confusion with other
cases, causing the operator to mistakenly believe that the contest form had
been sent.[2]
The Secretary does not oppose the request to reopen, but notes that the
operator reached out to MSHA on January 14, 2015 to resolve this matter and urges
Empresas
to
ensure that future penalty assessments are contested in a timely manner.

Having
reviewed Empresas’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/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen.  30 U.S.C. § 823(c).

[2] We note that
the Safety and Health Coordinator, Jorge Negron, who is responsible for
contesting proposed assessments by MSHA, is based in Puerto Rico and does not
appear to be a native English speaker.