Secretary of Labor v. Duracap Materials, LLC (Commission decision, August 20, 2018)

Plain-English summary

Duracap Materials asked to reopen a penalty assessment that appeared to have become final. A certified-mail receipt and Postal Service records showed that Duracap's contest reached the Arlington post office before the contest deadline, although it was never delivered to the Secretary, and the Secretary did not dispute timely notice. The Commission held that the assessment never became final under section 105(a), making Rule 60(b) unnecessary. It treated the reopening motion as moot and remanded for ordinary proceedings.

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 timely notice of contest prevents a proposed assessment from becoming a final Commission order even when the mailed notice is not properly delivered within MSHA.

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.

DURACAP
MATERIALS LLC

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Docket
No.  SE 2018-95-M

A.C.
No. 40-03343-442373

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 20, 2018, the Commission received from Duracap Materials LLC (“Duracap”) 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
July 5, 2017, Duracap received a proposed penalty assessment from the Secretary. On August 4, 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. MSHA mailed a delinquency notification to the operator on October 14, 2017, and the case was referred to the U.S. Department of Treasury for collection on December 14, 2017.

The
operator claims that it timely mailed a contest to MSHA. As evidence of the timely contest, the operator provides a certified mail receipt. Records from the US Postal Service indicate that the contest was received at the post office in Arlington, Virginia, but was never delivered to the Secretary. The Secretary does not oppose the request to reopen. Significantly, the Secretary does not dispute that the contest was received by MSHA on July 13, 2017, before it purportedly became a final order of the Commission.

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 Duracap timely notified the Secretary of the contest.

Therefore, having
reviewed Duracap’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 timely contested the proposed 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:

Matt
Nelson

Duracap
Materials LLC

P.O.
Box 53426

Knoxville,
TN 37950

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.