Lesueur-Richmond Slate Corporation

Plain-English summary

Lesueur-Richmond Slate Corporation received a proposed civil penalty assessment and mailed its contest the next day. MSHA received the contest by certified mail on July 27, 1998, but later treated September 28 as the receipt date after its penalty office could not find the original filing. Judge Paul Merlin held that service was complete on July 27 and that MSHA's loss or misfiling of the contest did not change that date. Because the Secretary filed the penalty petition after the 45-day deadline, the judge granted the operator's motion and dismissed the case.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.26 and 2700.28
• Outcome: The operator's motion to dismiss was granted, and the penalty petition was dismissed as untimely.
• Key point: An agency's later loss or misfiling of a properly served contest does not reset the filing date or extend the statutory deadline.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868
January 26, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 98-75-M
Petitioner : A. C. No. 44-00061-05536
v. :
LESUEUR-RICHMOND SLATE : Richmond-Arvonia Quarry
CORPORATION, :
Respondent :

                                ORDER OF DISMISSAL

Before: Judge Merlin

   This case is a petition for the assessment of civil penalties filed by the Secretary of Labor

under section 105(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 815(a) .

   The operator has filed a motion to dismiss the penalty petition on the ground that the

Secretary failed to file the petition timely.

   This case involves two orders that were issued on March 17, 1998, under section

104(d)(2) of the Act, 30 U.S.C. ' 814(d)(2), for alleged violations of mandatory standards.

    On July 15, 1998, the Secretary issued a notice of proposed civil penalty assessments.

According to the certified mail return receipt, the operator received the notice of proposed civil
penalties on July 22, 1998. The operator contends that it timely contested this assessment by
letter dated July 23, 1998, and it has provided a copy of the letter together with a certified mail
receipt signed by an MSHA employee showing that on July 27, 1998, the letter was received.
29 C.F.R. ' 2700.26. Based upon the receipt date, the 45 day period allowed for filing the
penalty petition expired on September 10, 1998. 29 C.F.R. ' 2700.28.

     The Solicitor advises that MSHA=s Civil Penalty Office has no record of receiving the

July 23 letter. MSHA mailed a demand letter for payment on September 23, 1998, and on
September 28, 1998, counsel for the operator faxed to MSHA a copy of the July 23 letter. The
faxed copy is the only record MSHA has of the operator=s contest. Thereafter, the Civil Penalty
Office changed the status of the case from closed to open and treated September 28 as the date of
receipt of the hearing request. The penalty petition was filed on November 6, 1998, which is
within 45 days of September 28.
Under standards established by the courts, the operator is only required to use a method to

Page 2

effectuate service that is reasonably calculated under all the circumstances to apprise the
interested party of the pendency of the action. Mullane v. Central Hanover B. & T. Co., 339 U.S.
306 (1950). Certified mail has been held to satisfy the due process due a litigant or prospective
litigant. Fuentes-Argueta v. I.N.S., 101 F.3d 867, 872 (2nd Cir. 1996); U.S. v. Clark, 84 F.3d
378, 381 (10th Cir. 1996); Sarit v. U.S. Drug Enforcement Admin., 987 F.2d 10, 14-15 (1st Cir.
1993). Moreover, the courts have recognized that due process does not require that the
interested party actually receive notice. In Re Blinder, Robinson & Co., Inc., 124 F.3d 1238,
1243 (10th Cir. 1997); Fuentes-Argueta v. I.N.S., supra at 872; U.S. v. Clark, supra at 381;
Katzson Bros., Inc. v. U.S.E.P.A., 839 F.2d 1396, 1400 (10th Cir. 1988); Weigner v. City of
New York, 852 F.2d 646, 650 (2nd 1988); Stateside Machinery Co., Ltd v. Alperin, 591 F.2d
234, 241 (1979).

    The certified mail receipt demonstrates that the operator=s request for hearing was

properly mailed and served. The receipt also establishes that on July 27, 1998, MSHA received
the hearing request. See, Brian Forbes, 20 FMSHRC 461 (April 1998). The Solicitor does not
challenge the validity of the certified mail receipt and he does not dispute that on July 27 the
contest was received. He merely states that MSHA has no record of receiving the contest and
submits an affidavit from the Acting Chief Civil Penalty Compliance Office setting forth general
procedures for handling contests. Based upon this record, I find that service by the operator was
proper and complete on July 27. I reject the Solicitor=s contention that MSHA did not receive
notice of the operator=s contest until September 28. The fact that MSHA may have misplaced,
misfiled or lost the contest does not render service invalid and does not alter the date the contest
was filed. Accordingly, the penalty petition was untimely.

    The Commission permits late filing of penalty petitions where the Secretary demonstrates

adequate cause for the delay and where the respondent fails to show prejudice from the delay. Salt
Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981). The Secretary must
establish adequate cause for the delay in filing, apart from any consideration of whether the
operator was prejudiced by the delay. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct.
1989). Adequate cause has been found in a number of situations. See e.g. Medicine Bow Coal
Co., 4 FMSHRC 882 (May 1982); Wharf Resources USA Incorporated, 14 FMSHRC 1964
(November 1992); Fisher Sand and Gravel Company, 14 FMSHRC 1968 (November 1992);
Roberts Brothers Coal Company, 17 FMSHRC 1103 (June 1995); Lone Mountain Processing
Incorporated, 17 FMSHRC 839 (May 1995); Austin Powder Company, 17 FMSHRC 841 (May
1995); Ibold Incorporated, 17 FMSHRC 843 (May 1995); Secretary of Labor v. Roger
Chistensen, 18 FMSHRC 1693 (August 1996).

    In this case, the Solicitor does not allege adequate cause for late filing and therefore, he

offers no reasons why the operator=s contest was not recorded when it was received. The
Solicitor=s sole basis for opposing dismissal is the argument that the date of filing for the contest
should be the date MSHA finally recorded receipt. As I have already held, MSHA=s errors or
lapses do not control filing dates. If the Solicitor had come forward with reasons sufficient to
demonstrate adequate cause for not recording receipt, as Solicitors have done in the past, the
result here might have been different.

                                               2

Page 3

In light of the foregoing, it is ORDERED that the operator=s motion to dismiss be

GRANTED and that this case be DISMISSED.

                                        Paul Merlin
                                        Chief Administrative Law Judge

Distribution: (Certified Mail)

Javier I. Romanach, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203

Adele L. Abrams, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington, DC 20037

/gl

                                           3