Secretary of Labor v Kevin Coleman, formerly employed by Carmeuse Lime

Plain-English summary

MSHA proposed an individual penalty against former mine supervisor Kevin Coleman under section 110(c). MSHA had been told to send case materials to Coleman's counsel, but it mailed the assessment to a mine that was closed and listed as abandoned. The Postal Service returned the assessment, and MSHA made no further service attempt. The Commission held that an assessment sent to the wrong address and never served does not become a final order. It denied the reopening motion as moot and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(c)
• Outcome: The assessment was held nonfinal, the reopening motion was denied as moot, and the case was remanded.
• Key point: An individual penalty assessment cannot become final when MSHA sends it to a closed mine and never serves the charged person.

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.

KEVIN
COLEMAN, formerly employed

by
CARMEUSE LIME

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Docket
No. SE 2024-0135

A.C.
No. 09-01228-593452A

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BEFORE:
Jordan, Chair; Baker and Marvit, 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 April 4, 2024, the Commission received a
motion from Kevin Coleman 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.

On
June 29, 2022, the Mine Safety and Health Administration (“MSHA”) issued
Citation No. 9701264 to Carmeuse Lime for an alleged safety violation at its
Talona Mountain Mine. Subsequently, MSHA instigated a special investigation against
Coleman, the mine supervisor, in connection with the aforementioned citation. On
January 17, 2024, MSHA requested a mailing address for Coleman and was informed
that anything related to the case should be sent to his counsel. However, on January
31, 2024, MSHA issued a proposed penalty assessment to Coleman and attempted to
serve the assessment to the mine site.

MSHA records indicate that the Talona
Mountain Mine was listed as abandoned as of December 12, 2023. The mine was closed,
and Coleman was no longer employed at that location. Unsurprisingly, when
service of the proposed assessment was attempted, USPS could not deliver the
assessment and it was promptly returned to sender. MSHA made no further attempt
to remedy the faulty service attempt.

Having reviewed Coleman’s request and the
Secretary’s response, we conclude that the proposed penalty assessment did not
become a final order of the Commission because it was never served on Coleman. The
Commission has held that when an assessment is sent to the wrong address, it
does not become a final order, so a request to reopen it is moot. See Petra
Materials, 32 FMSHRC 1113, 1116 (Sept. 2010); American Sand Co. LLC,
42 FMSHRC 767 (Oct. 2020) (applying this principle to an order of default when
the Chief Judge’s order to show cause was sent to the wrong address). This
obviates any need to invoke Rule 60(b). Accordingly, the Coleman’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/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Arthur
M. Wolfson, Esq.

Fisher
& Phillips LLP

Six
PPG Place, Suite 830

Pittsburgh,
PA 15222

[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]

Administrative
Law Judge Alen Paez

Office
of the Chief Administrative Law Judge

Federal
Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Law
Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]