Dickenson-Russell Coal Company, LLC (Commission decision, May 6, 2009)

Plain-English summary

A recently hired Dickenson-Russell employee sent payment for all penalties except two that the company intended to contest. The employee inadvertently failed to file the two contest forms and submitted them after discovering the mistake. The Secretary did not oppose reopening. The Commission reopened and remanded the final assessment, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: A new employee's documented failure to file two intended contests, despite correctly paying the other penalties, supported reopening.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 6, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DICKENSON-RUSSELL
COAL COMPANY, LLC

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Docket No. VA 2008-395
A.C. No. 44-06444-149645

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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. (2006) (“Mine Act”). On August 20, 2008, the Commission received from Dickenson-Russell Coal Company, LLC (“Dickenson-Russell”) a motion made by counsel 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect. 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).

The Secretary states that she does not oppose reopening the proposed penalty assessment. The record indicates that a recently hired employee of the operator forwarded a check covering all citations covered by a proposed penalty assessment except for two citations which the operator intended to contest. However, the employee inadvertently neglected to file contests for those two penalties. When he learned of his mistake, he belatedly submitted the contest form to the Secretary.

Having reviewed Dickenson-Russell’s request and the Secretary’s response, in the interests 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.

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner    

Robert F. Cohen, Jr., Commissioner

Distribution:

Timothy W. Gresham, Esq.

Penn Stuart & Eskridge

P.O. Box 2288

Abingdon, VA 24212

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021