Secretary of Labor v. Elmore Sand & Gravel, Inc.

Plain-English summary

Elmore Sand & Gravel's safety director resigned near the time a proposed penalty assessment arrived and did not tell anyone about it. The company submitted the contest form one day after the assessment became final, and counsel's travel contributed to delay in filing the reopening motion. Elmore reassigned office personnel to ensure future contests would be handled on time, and the Secretary did not oppose relief. 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: A near-immediate contest, identified employee departure, and concrete changes to office responsibility supported reopening despite a later delay in seeking relief.

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 2015-25-M

v.                                              
 :        A.C. No. 01-01138-357167     

:                   

ELMORE
SAND & GRAVEL, 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 October 9, 2014, the Commission received from Elmore
Sand & Gravel, Inc. (“Elmore”) 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 August 1, 2014, and became a
final order of the Commission on September 2, 2014. The operator asserts that
towards
the end of July 2014, the company’s safety director resigned and did not tell
anyone about the proposed assessment. The operator offers a letter to support
that it submitted the contest form on September 3, 2014. The operator’s counsel
also maintains that he “traveled extensively,” which resulted in a delay filing
the motion to reopen. The operator asserts that since this case arose, it has
taken steps, such as reassigning office personnel, to ensure that all contests
are timely filed. The Secretary does not oppose the request to reopen. However,
he
urges Elmore to ensure that
future penalty assessments are contested in a timely manner.

Having
reviewed Elmore’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).