Suburban Sand & Gravel (Commission decision, May 18, 2005)

Plain-English summary

Suburban Sand & Gravel asked the Commission to reopen a penalty assessment that had become final after the company did not timely contest it. Suburban said that MSHA sent the proposed assessment to the company rather than to its counsel, even though counsel had requested service. The Secretary did not oppose reopening but maintained that service at the operator's address was proper. The Commission remanded the matter to the Chief Administrative Law Judge to decide whether good cause existed for the late contest and whether relief from the final order should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. §§ 801 and 815(a)
• Outcome: The request to reopen was remanded for a determination of good cause and possible relief from the final penalty order.
• Key point: The Commission may consider reopening an uncontested penalty assessment when an operator claims that notice went to the business instead of its counsel of record.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,
Suite 9500
Washington, DC 20001

DATE, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

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Docket No. WEST 2005-245-M
A.C. No. 05-04428-42795

v.

SUBURBAN SAND & GRAVEL

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On March 25, 2005, the Commission received from Suburban Sand & Gravel ("Suburban") a motion made by counsel 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).

In its motion, Suburban states that on July 15, 2004, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued the company several citations, including Citation No. 6311776. Mot. at 2. Through counsel, Suburban timely contested Citation No. 6311776, id., docketed as WEST 2004-461-RM and currently on stay before Commission Administrative Law Judge Richard Manning. Counsel for Suburban explicitly requested that any proposed penalty assessments made in connection with Citation No. 6311776 be served on counsel. Mot. at 2-3. On November 12, 2004, when MSHA issued a proposed penalty assessment for Citation No. 6311776, it was sent to Suburban's business address rather than the operator's counsel of record in WEST 2004-461-RM. Mot. at 3. Suburban's counsel did not receive information regarding the proposed assessment until after the time to contest it had run. Id. at 3-4. While the Secretary states that she does not oppose Suburban's request for relief, she also maintains that service of the November 12, 2004 proposed penalty assessment was properly made on the operator at its address of record.

We have held 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 inadvertence or mistake. 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).

Having reviewed Suburban's motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Suburban's failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Stanley C. Suboleski, Commissioner

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Michael G. Young, Commissioner

Distribution:

James J. Gonzales, Esq.

Holland & Hart, LLP

555 Seventeenth Street, Suite 3200

P.O. Box 8749

Denver, CO 80201-8749

Jack Powasnik, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, Suite 9500

Washington, D.C. 20001