Secretary of Labor v. Professional Contracting, LLC (Commission decision, October 20, 2014)

Plain-English summary

Professional Contracting's proposed assessment was delivered to its address of record and became final without a contest. Eddie Joe Estep said he had relocated and never received the assessment, then discovered the delinquency while checking MSHA's data system. The Secretary did not oppose reopening but noted that the official address was not changed until several months later. The Commission reopened the assessment in the interest of justice and remanded it for merits proceedings. It directed the Secretary to file a penalty petition within 45 days and urged the contractor to prevent future filing failures.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: A missed assessment after relocation may support reopening, but contractors remain responsible for maintaining a current address and reliable contest procedures.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

PROFESSIONAL CONTRACTING, LLC

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DocketNo.

A.C. No.

VA 2013-559

44-07252-325417 A1837

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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 September 24, 2013, the Commission received from Professional Contracting 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 June 26, 2013, signed for by Margaret Estep, and became a final order of the Commission on July 26, 2013. Eddie Joe Estep asserts that he relocated in June and never received the proposed assessment. Estep further states that he discovered the delinquency on September 13, 2013 upon checking MSHA’s Data Retrieval System. The Secretary does not oppose the request to reopen, but notes that the address of record was only changed on November 18, 2013. The Secretary urges the contractor to take steps to ensure that future penalty contests are timely filed.

Having reviewed
this request and the Secretary’s response, 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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner