Bresee Trucking Co., Inc.

Plain-English summary

Bresee Trucking asked to reopen five penalty assessments after delivery attempts at several addresses failed and the company later learned the assessments were delinquent. The Secretary did not oppose reopening but urged Bresee to keep its official MSHA address current. The record did not show whether MSHA had mailed the assessments to Bresee's official address of record or whether the company had maintained the correct address. Because that fact could determine whether the assessments became final and whether relief was available, the Commission remanded the matters to the Chief Administrative Law Judge for further proceedings.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 41.10, 41.12, and 41.30; 30 U.S.C. § 815(a)
• Outcome: Five reopening requests were remanded to determine whether the assessments became final and, if so, whether to reopen them.
• Key point: When delivery fails, the operator's official address of record can determine whether a penalty assessment became final.

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

July 24, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

BRESEE TRUCKING CO., INC.

Docket No. VA 2009-46

A.C. No. 44-03088-151516 GTY

Docket No. VA 2009-47

A.C. No. 44-07087-144483 GTY

Docket No. VA 2009-48

A.C. No. 44-07069-148351 GTY

Docket No. VA 2009-49

A.C. No. 44-07069-144482 GTY

Docket No. KENT 2009-190

A.C. No. 15-17165-136968 GTY

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 November 5, 2008, the Commission received from
Bresee Trucking Co., Inc. (“Bresee”) motions by counsel seeking to reopen five penalty
assessments that had become final orders 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 inadvertence or mistake. 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 record indicates that delivery of the proposed penalty assessments was attempted at
several addresses but was not successful. Upon learning that the proposed assessments were
delinquent, the operator filed these requests to reopen. The Secretary states that she does not
oppose the reopening of the proposed penalty assessments but urges the operator to make sure
that it keeps MSHA informed of its current address of record.

It is an operator’s responsibility to file with MSHA the address of a mine and any
changes of address. 30 C.F.R. §§ 41.10, 41.12. Operators may request service by delivery to
another appropriate address provided by the operator. 30 C.F.R. § 41.30.

It is unclear from the record whether MSHA mailed the proposed assessment to Bresee’s
official address of record at the time of assessment and whether Bresee maintained its correct
address with MSHA. If MSHA sent the proposed assessment to Bresee’s official address of
record, grounds may exist for denying Bresee’s request for relief. Cf. Harvey Trucking, 21
FMSHRC 567, 568-69 & n.1 (June 1999) (stating that operator is required to notify MSHA of
changes of address). If, however, MSHA mailed the proposed assessment to an incorrect
address, the proposed assessment may not have become a final Commission order and Bresee’s
request may be moot.

Having reviewed Bresee’s motions, we remand this matter to the Chief Administrative
Law Judge for a determination of whether the proposed assessments became final orders and, if
so, whether the final orders should be reopened. We ask the Chief Judge, in considering the
matter, to resolve the dispute over whether MSHA sent the proposed assessment to Bresee’s
official address of record at the time of assessment. The Judge shall order further appropriate
proceedings based upon that determination in accordance with principles described herein, the
Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.                              

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

______

Michael G. Young, Commissioner

______

Robert F. Cohen, Jr., Commissioner

Distribution:

Marco M. Rajkovich, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

2333 Alumni Park Plaza, Suite 310

Lexington, KY 40517

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