Secretary of Labor v. Allstate Materials, LLC, et al. (Commission decision, April 28, 2016)

Plain-English summary

Eight operators asked the Commission to reopen penalty assessments that had become final after MSHA did not receive their contest notices. Each operator said it mailed a timely contest to the Arlington address printed on the assessment, but the mail was lost or returned as undeliverable. The Secretary did not oppose reopening because MSHA had moved its headquarters in July 2015 and postal forwarding to the new address was inconsistent. The Commission reopened all eight cases in the interest of justice, remanded them to the Chief Administrative Law Judge, and required the Secretary to file penalty petitions within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Eight final penalty assessments were reopened and remanded for proceedings on the merits.
• Key point: Documented mail-delivery problems caused by an agency office move supported relief from otherwise final default assessments.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),       

v.

ALLSTATE
MATERIALS, LLC, et al.[1]

:

:

:

:

:

:

:

:

Docket
Nos.    SE 2015-455-M

WEVA 2015-1014

VA 2016-18

SE 2016-24-M

CENT 2016-28-M

KENT 2016-2

WEVA 2015-996

WEVA 2015-997

BEFORE:  Jordan,
Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

ORDER

BY THE
COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.   
§ 801 et seq. (2012) (“Mine Act”). Between September 2 and October 26, 2015, the Commission received motions from the above-captioned operators seeking to reopen penalty assessments that had become final orders 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).

In all of these cases, the operators
claim that they mailed timely notices of contest to the Arlington office of the Mine Safety and Health Administration (“MSHA”) at the address listed on the proposed assessment. The operators further contend that the contests were either lost in the mail or returned as undeliverable. The Secretary does not oppose reopening because of problems concerning mail delivery following the relocation of MSHA’s headquarters on July 15, 2015. In particular, MSHA maintains that the U.S. Postal Service has not consistently forwarded all of its mail to its new address.[2]

Having
reviewed the requests to reopen and the
Secretary’s response, in the interest of justice, we hereby reopen these matters and remand them 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, the Secretary shall file petitions for assessment of penalty in each case 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/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

James
F. Bowman

P.O.
Box 99

Midway,
WV 25878

Charles
Livingston

Livingston
Aggregate LLC

5870
County Rd. 21

Akron,
AL 35441-2205

Billy
R. Shelton, Esq.

Jones
Walters, Turner, & Shelton PLLC

2452
Sir Barton Way, Suite 101

Lexington,
KY 40509

Chris
Vaughn

Ozark
Southern Stone

P.O.
Box 40

Beaver,
AR 72613

Michael
T. Cimino, Esq.

Jackson
Kelly, PLLC

1600
Laidley Tower

P.O.
Box 553

Charleston,
WV 25322

David
C. Powell

Allstate
Materials, LLC

2708
Country Rd. 85

Deatsville,
AL 36022

Clark
Livingston

Livingston
Aggregate LLC

5870
County Rd. 21

Akron,
AL 35441-2205

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

Exhibit 1

Operator

Docket
Number

A.C.
Number

Allstate
Materials, LLC

SE
2015-455-M

01-03406-387911

Eastern
Associated Coal, LLC

WEVA
2015-1014

46-01456-384741

Hills
Coal Company, Inc.

VA
2016-18

44-03472-389324

Livingston
Aggregate, LLC

SE
2016-24-M

01-03359-387668

Ozark
Southern Stone

CENT
2016-28-M

03-01936-386157

Pine
Branch Mining, LLC

KENT
2016-2

15-16883-383468

Raw
Coal Mining Company

WEVA
2015-996

46-06265-383951

Sally
Ann Coal Company

WEVA
2015-997

46-06843-383326

[1] For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket numbers SE 2015-455-M, WEVA 2015-1014, VA 2016-18, SE 2016-24-M, CENT 2016-28-M, KENT 2016-2, WEVA 2015-996, and WEVA 2015-997 involving similar procedural issues. 29 C.F.R. § 2700.12. For the sake of brevity, the relevant operators’ names, A.C. numbers, and associated docket numbers have been listed in Appendix A, attached to this order.

[2] Notice of the
change in MSHA’s address was published in the Federal Register on September 2, 2015, nearly three months after MSHA moved its headquarters. 80 Fed. Reg. 52984-01. Additionally, we note that MSHA’s mailing address listed on the Notice of Contest Rights and Instructions included with proposed assessments and the Commission’s website were not up-to-date during the relevant time period. Insofar as the operators may have been confused by these documents, we find that their failure to timely contest the proposed penalties is excusable.