Secretary of Labor v. Vulcan Electrical Services

Plain-English summary

Vulcan Electrical Services missed the deadline to contest a proposed penalty assessment after a new administrative assistant received it but did not understand the 30-day deadline. The assistant did not forward the assessment to the safety director until after it had become a final order. Vulcan trained the assistant on the contest period and moved to reopen one day after discovering the error. The Secretary did not oppose reopening. The Commission found inadvertence and excusable neglect, reopened the assessment, and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: Prompt corrective action and training supported reopening after a new employee mishandled an assessment.

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.

VULCAN
ELECTRICAL SERVICES

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Docket
No. SE 2023-0014

A.C.
No. 38-00010-561545

BEFORE: 
Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On October 21, 2022, the Commission received
from Vulcan Electrical Services (“Vulcan”) a motion seeking to reopen a penalty
assessment that had become a final order 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicate that the proposed assessment was delivered on August 29, 2022, and
became a final order of the Commission on September 28, 2022.

Vulcan explains that a new administrative
assistant received the proposed penalty assessment but did not understand the
significance of the timing for filing a contest. Consequently, the assistant
did not forward the proposed penalty assessment to the Director of Safety until
October 20, 2022. Vulcan provided training regarding the 30-day contest period
to the administrative assistant to ensure that future contests are timely. The
operator filed the motion to reopen one day after the error was discovered. 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 in accordance
with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s procedural
rules.

Having
reviewed Vulcan’s request and the Secretary’s
response, and in light of the operator’s prompt filing of a motion to
reopen and the operator’s actions to correct the issue, we find that the delay
in filing the penalty contest was the result of inadvertence and excusable
neglect. In the interest of justice, 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 file a petition for assessment of penalty within 45 days of the
date of this order. See 29 C.F.R. § 2700.28.

/s/
Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich,
Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker,
Commissioner

Distribution:

William
K. Doran, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

1909
K Street, N.W., Suite 1000

Washington,
D.C. 20006

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. 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]