Secretary of Labor v. Howard R. Hensley, employed by Mill Branch Coal Co.

Plain-English summary

Howard Hensley did not timely contest an individual penalty assessment under section 110(c). He said he never received the assessment because his home address had changed, and postal records showed that the mail was refused and returned to MSHA because the addressee was unknown. The Secretary did not oppose reopening but stressed that Hensley was responsible for notifying MSHA of his new address. The Commission reopened the assessment in the interest of justice and remanded it for further proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.26 through 2700.28; 30 U.S.C. § 820(c)
• Outcome: The final individual penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Postal proof that an assessment was returned after an address change can support reopening, although the individual remains responsible for keeping MSHA informed.

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.

HOWARD
R. HENSLEY, employed by

MILL
BRANCH COAL CO.                                       

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Docket
No. VA 2015-29

A.C.
No. 44-07189-337390 A

BEFORE:  Young, Nakamura,
and Althen, Commissioners[1]

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 October 30, 2014, the Commission received
a motion from Howard R. Hensley (“Hensley”) 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.

Under
the Commission’s Procedural Rules, an individual
charged under section 110(c) has 30 days following receipt of the
proposed penalty assessment within which to notify the Secretary of Labor that
he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual
fails to notify the Secretary, the proposed penalty assessment is deemed a
final order of the Commission. 29 C.F.R. § 2700.27.

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 December 11, 2013, and
became a final order of the Commission on January 10, 2014. Mr. Hensley asserts
he did not receive the proposed assessment because of a change in his home
address. USPS records indicate that the proposed assessment was refused and
later returned to MSHA because the addressee was unknown. The Secretary does not
oppose the request to reopen. However, he notes that it was Hensley’s obligation
to notify MSHA of his change of address. He urges Hensley to take steps to
ensure that future penalty contests are timely filed.

Having
reviewed Hensley’s 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/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen.  30 U.S.C. § 823(c).