Secretary of Labor v. Steve Ingram, employed by Jim Walter Resources, Inc. (Commission decision, July 10, 2017)

Plain-English summary

Steve Ingram did not timely contest an individual civil penalty assessment under section 110(c), so the assessment became a final Commission order. The assessment was based on a section 104(d)(1) order issued to his employer, but that order was later modified through settlement to a section 104(a) citation. Ingram argued that the modification removed the legal basis for individual liability, and the Secretary agreed that the case should be reopened and dismissed. The Commission reopened the final assessment and remanded it to the Chief Administrative Law Judge. It directed the Secretary either to dismiss the matter or file a penalty petition within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 820(c)
• Outcome: The individual assessment was reopened and remanded for dismissal or further penalty proceedings.
• Key point: When both parties agree that modification of the underlying enforcement order defeats individual liability, the Commission may reopen the defaulted assessment so the issue can be resolved on remand.

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.

STEVE
INGRAM, employed by JIM

WALTER RESOURCES, INC.                                            

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Docket
No. SE 2016-32

A.C.
No. 01-01401-387866 A

BEFORE:    Althen,
Acting Chairman; Jordan, Young, and Cohen, 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. (2012) (“Mine Act”).  On November 2, 2015, the Commission received a motion from Steve Ingram (“Ingram”) 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.  If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission.  29 C.F.R. § 2700.27.

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 another 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 for the alleged 110(c) violation was delivered on August 3, 2015, and became a final order of the Commission on September 2, 2015.  A delinquency notification was mailed to the individual on October 19, 2015.

Ingram asserts that Order No. 8524966, a
104(d)(1) order, was the basis for Ingram’s alleged violation under section 110(c), 30 U.S.C. § 820(c).  However, as part of a settlement between the Secretary and Ingram’s employer, this order was modified to a 104(a) citation.  Ingram contends that by operation of law, a modification of a section 104(d) order to a section 104(a) citation precludes individual liability under section 110(c).  Therefore, Ingram argues that this matter must be reopened so that the 110(c) proceeding can be dismissed.

The Secretary does not oppose the
request to reopen, does not dispute Ingram’s contentions, and requests that the Commission reopen this 110(c) proceeding.  After the Commission reopens this proceeding, the Secretary suggests that MSHA will move to dismiss it.

Having
reviewed Ingram’s request and the Secretary’s response, given that both parties agree that this matter should be reopened and then dismissed, 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 either dismiss this matter or file a petition for assessment of penalty within 45 days of the date of this order.  See 29 C.F.R. § 2700.28.

/s/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Guy
W. Hensley, Esq.

Walter
Energy, Inc.

3000
Riverchase Galleria

Suite
1700

Birmingham,
AL 35244

David
M. Smith, Esq.

John
B. Holmes III, Esq.

Allen
B. (“Josh”) Bennett

Maynard,
Cooper and Gale, P.C.

1901
6 th Avenue North

2400
AmSouth/Harbert Plaza

Birmingham,
AL 35203

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

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 500

Arlington,
VA 22202-5450