Secretary of Labor v. Beelman Truck Co. (Commission decision, August 21, 2018)

Plain-English summary

Beelman Truck asked to reopen a penalty assessment that appeared to have become final after no contest was received. The Postal Service had returned the assessment unclaimed, Beelman said it never received it, and the Secretary did not contend that Beelman refused delivery. The Commission held that the assessment never became a final order because the operator had no opportunity to notify the Secretary of an intent to contest. It therefore treated the reopening request as moot and remanded for ordinary proceedings without using Rule 60(b).

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen was moot, and the case was remanded for further proceedings.
• Key point: A proposed assessment does not become final under section 105(a) when the operator never receives it and therefore has no opportunity to contest.

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.

BEELMAN
TRUCK CO.

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Docket
No. SE 2018-84-M

A.C.
No. 01-00040-448729

BEFORE:  Althen,
Acting Chairman; Jordan, and Young, 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 February 7, 2018, the Commission received from Beelman Truck Co. (“Beelman”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On
September 23, 2017, the U.S. Postal Service attempted to deliver a proposed penalty assessment from the Secretary to the operator. However, the assessment was returned unclaimed. On October 23, 2017, the proposed assessment was deemed a final order of the Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days.     Subsequently, a delinquency notification was mailed to the operator on December 11, 2017.

The
operator claims that it filed a timely contest for a citation underlying the proposed assessment but claims that it never received the assessment itself. The Secretary does not oppose the request to reopen. Significantly, the Secretary concedes that the assessment was returned unclaimed and does not argue that the operator refused to accept delivery of the assessment.

Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, the evidence indicates that Beelman never received the assessment and thus, did not have an opportunity to notify the Secretary that it intended to contest the assessment.

H aving
reviewed Beelman’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator never received the assessment. This obviates any need to invoke Rule 60(b).

Accordingly, the operator’s motion to
reopen is moot, and this case is remanded 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.

/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

Distribution:

Jane
H. Heidingsfelder, Esq.

Jones
Walker LLP

201
St. Charles Ave., 50 th Floor

New
Orleans, LA 70170-5100

Ali
Beydoun, 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

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