Secretary of Labor v. Barnette Contractors, Inc. (Commission decision, August 30, 2018)

Plain-English summary

Barnette Contractors mailed its penalty contest before the assessment became final, but sent it to the Commission and an MSHA district office rather than MSHA's Civil Penalty Compliance Office. Postal records confirmed that the Commission received the letter several weeks before the contest deadline. The Secretary did not oppose reopening but urged the operator to correct its filing practices. The Commission found mistake, inadvertence, or excusable neglect and reopened the assessment. It remanded the matter for ordinary penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A contest mailed on time but directed to the wrong agency office may be reopened when the mistake is documented and the Secretary does not oppose relief.

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.

BARNETTE
CONTRACTORS, INC.

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Docket
No. VA 2017-176

A.C.
No. 44-06045-427215

BEFORE:  Althen,
Acting 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. (2012) (“Mine Act”). On June 7, 2017, the Commission received from Barnette Contractors, Inc. (“Barnette”) 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 December 27, 2016, and became a final order of the Commission on January 26, 2017. Barnette asserts that on January 2, 2017, counsel for the operator sent a letter objecting to the proposed penalty assessment to the Executive Director of the Federal Mine Safety and Health Review Commission in Washington, D.C., with a copy to the MSHA District Office in Norton, Virginia.

USPS records indicate that the
operator’s January 2, 2017 letter was received by the Federal Mine Safety and Health Review Commission in Washington, D.C. on January 9, several weeks before the assessment became a final order. See Attachment C to the Secretary’s Non-Opposition (receipt indicating delivery date of letter). However, the proposed assessment instructs the operator to send any contest to the MSHA Civil Penalty Compliance Office in Arlington, Virginia. Therefore, while the operator mailed its contest before the assessment became a final order, it incorrectly sent its contest to the wrong agency (i.e., the Commission) and to an MSHA District Office rather than to the MSHA Civil Compliance Office in Arlington, Virginia.

We
recognize that the operator timely mailed its contest, albeit to the wrong address. Furthermore, we recognize that the Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Therefore,
having reviewed Barnette’s request and the
Secretary’s response, we find that the operator’s failure to timely contest the assessment was a result of mistake, inadvertence, or excusable neglect under Rule 60(b). 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/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Gregory
M. Stewart, Esq.

Stewart
Law Office, P.C.

940
Park Ave., Northwest

P.O.
Box 616

Norton,
VA 24273-0616

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450