Bresee Trucking Co., Inc.

Plain-English summary

Bresee Trucking sought to reopen two penalty assessments, arguing that they were delivered to the wrong address and were not discovered until after the contest deadline. The Secretary showed that Bresee had specifically instructed MSHA to use that address, had received and contested other assessments there, and that the owner's representative signed for these assessments. The Commission found Bresee's explanation inconsistent and concluded that its procedures for following up on received mail and deciding whether to contest assessments were inadequate. It also noted earlier reopening requests caused by delivery problems despite warnings to keep MSHA's address records current. The Commission denied both motions with prejudice.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 41.10 and 41.12; 30 U.S.C. § 815(a)
• Outcome: Both motions to reopen the final penalty assessments were denied with prejudice.
• Key point: An operator must maintain an accurate MSHA address and a reliable system for processing delivered assessments.

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

January 18, 2011

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

BRESEE TRUCKING CO., INC. 

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Docket No. VA 2011-579

A.C. No. 44-07251-247562

Docket No. KENT 2011-1310

A.C. No. 15-18241-247495

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On July 28, 2011, the Commission received from Bresee
Trucking Co., Inc. (“Bresee”) two motions seeking to reopen two 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 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 record indicates that the proposed assessments were delivered on March 28, 2011,
and became final orders of the Commission on April 27, 2011. Bresee asserts that it was not
aware of the proposed assessments until after the 30 day time limit to contest had expired.
Bresee states that the proposed assessments were mailed to “Rd # 708 Seminary,” while Bresee’s
address of record is “P.O. Box 560.”

The Secretary opposes the requests to reopen and notes that MSHA’s assessment center,
Wilkes-Barre, PA, received specific mailing instructions from Bresee on October 29, 2008, to
use the “Rd # 708 Seminary” address. The Secretary provided a copy of these mailing
instructions. The Secretary states that the proposed assessments were mailed to “Rd # 708
Seminary” by FedEx on February 25, 2011, and were returned undelivered. The proposed
assessments were mailed again to the same address by the U.S. Postal Service, certified mail, and
were signed for by Hillis Bresee on March 28, 2011. Moreover, the Secretary asserts that this
same address has been used by MSHA for mailing all proposed assessments since 2008, and
Bresee has been receiving, and contesting, these proposed assessments. Therefore, the Secretary
states that the operator has failed to adequately explain why the proposed assessments should not
be considered to have been properly served.

On September 28, 2011, the Commission sent Bresee a letter asking it to identify how
and when it discovered that the penalties were not timely contested, what office procedures were
implemented to prevent such failure in the future, and respond to the Secretary’s assertions
regarding Bresee’s address of record. In response, Bresee asserts that it maintains a mailbox at
the local post office and has also publicized a physical address, which has no mailbox, for special
delivery services, such as FedEx. Bresee further states that these proposed assessments were
actually delivered to another mailbox, not assigned to Bresee.

The Commission has made it clear that where a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061,
1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining
Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156
(Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). It is the operator’s
responsibility to maintain an accurate address of record with MSHA, and notify MSHA within 30
days of any changes to its information. 30 C.F.R. §§ 41.10, 41.12. In this case, the address
provided by the operator in 2008, which it now claims to be only for FedEx deliveries, returned
mail as undelivered by FedEx. At the same time, Bresee’s owner has been signing for U.S.
Postal Service mail at this same address, which it now claims has no mailbox. We conclude that
the operator’s lack of procedure to follow up on received mail and determine whether and when
proposed assessments should be contested represents an inadequate or unreliable internal
processing system. Sloss Indus., Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007); Gibbs
v. Air Canada, 810 F. 2d 1529, 1537 (11th Cir. 1987). We also note that this type of failure
appears to be part of a pattern for Bresee, as shown by its previous motions to reopen five penalty
assessments which had become final orders of the Commission due to unsuccessful delivery
attempts, where the Secretary and the Commission urged Bresee to keep MSHA informed of its
address of record. Bresee Trucking Co., Inc., 31 FMSHRC 804, 805 (Jul. 2009).

Having reviewed Bresee’s requests and the Secretary’s responses, we conclude that
Bresee has failed to establish good cause for reopening the proposed penalty assessments, and
deny its motions with prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Michael D. Clements

Representative

408 A Manor Drive

Kingsport, TN 37660

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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