Palm Beach Aggregates LLC v. Secretary of Labor and Secretary of Labor v. Palm Beach Aggregates LLC

Plain-English summary

Palm Beach Aggregates began working remotely one day before a proposed assessment arrived in March 2020. The assessment did not reach the safety director until after the contest deadline, and the company filed a contest about two weeks later. The Commission found the moderate delay excusable under the unusual pandemic circumstances and reopened the penalty proceeding. It also granted review of the related contest dismissal, vacated that dismissal because the penalty case was reopened, and consolidated the two matters. The cases were remanded, with the Secretary directed to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.70
• Outcome: The penalty case was reopened, the contest dismissal was vacated, and the consolidated matters were remanded.
• Key point: A moderate processing delay caused by an abrupt pandemic work-from-home transition was excusable.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON,
DC 20004-1710

PALM
BEACH AGGREGATES LLC,

v.        

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

PALM
BEACH AGGREGATES LLC

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Docket
No. SE 2020-0067-RM

Docket
No. SE 2021-0168

A.C.
No. 08-01160-510158

BEFORE:  Traynor,
Chair; Althen and Rajkovich, Commissioners

DIRECTION FOR
REVIEW AND ORDER

BY THE COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (the “Mine Act”). On June 10, 2020, the contest proceeding
in Docket   No. SE 2020-0067-RM was dismissed as moot on grounds that the penalty
assessment for the citation at issue had become a final order. On June 12,
2020, Palm Beach Aggregates, LLC (“Palm Beach”) filed a motion in Docket No. SE
2020-0067-RM seeking to reopen both the contest proceeding and the related
penalty assessment. We construe Palm Beach’s filing as a petition for
discretionary review of the order dismissing the contest proceeding, and a motion
to reopen the civil penalty proceeding.

Regarding the motion to reopen, 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”) indicate
that the proposed penalty assessment was delivered on March 17, 2020,  and
became a final order of the Commission on April 16, 2020. Palm Beach asserts that
internal processing of the proposed assessment was delayed by the operator’s
response to the Covid-19 pandemic. Specifically, a work-from-home policy was
initiated on March 16, 2020, before the proposed assessment arrived. As a
result, the proposed assessment was not received by the Safety Director until
April 23, 2020, and was contested approximately two weeks later.

The Secretary does
not oppose the request to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed.

Having reviewed
Palm Beach Aggregates’ request and the Secretary’s response, we find that the moderate
delay in contesting the proposed penalty assessment was excusable in light of
the unusual pandemic-related circumstances. In the interest of justice, we hereby reopen the penalty
proceeding. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order.

With regard to the
dismissal of the contest proceeding, we grant the operator’s timely petition
for discretionary review. 29 C.F.R. § 2700.70. The contest proceeding was
dismissed as moot on grounds that the proposed civil penalty for the citation
at issue had not been properly contested, and had therefore become a final order.
As we have reopened the associated penalty proceeding, we vacate and reverse
the Judge’s dismissal order in Docket No. SE 2020-0067-RM.

We hereby
consolidate the contest and penalty proceedings, and remand this matter 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Daniel
A. Kaplan

Foley
& Lardner LLP

150
East Gilman Street

Madison,
WI 53701-1497

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

Division
of Mine Safety and Health

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Archith
Ramkumar, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]