Dicaperl Minerals Corporation (Commission decision, March 1, 2005)

Plain-English summary

MSHA issued a proposed penalty assessment to Dicaperl Minerals Corporation’s El Grande Plant. An employee who was new to mail processing signed for the assessment but did not bring it to management’s attention, so Dicaperl missed the 30-day deadline to request a hearing. The company moved to reopen the assessment, and the Secretary did not oppose the request. The Commission remanded the matter to the Chief Administrative Law Judge to decide whether Dicaperl had good cause for the missed deadline and whether reopening was appropriate.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The matter was remanded for a determination whether good cause supported reopening the final penalty assessment.
• Key point: An internal mail-processing mistake may support reopening a final penalty assessment if the operator establishes good cause.

Full text (FMSHRC public release)

DICAPERL MINERALS CORPORATION -- March 1, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

March 1, 2005

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEST 2005-30-M
v. : A.C. No. 05-00438-33522
:
DICAPERL MINERALS CORPORATION :

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 October 15, 2004, the Commission received from Dicaperl Minerals Corporation ("Dicaperl") 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).

On July 30, 2004, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 05-00438-33522) to Dicaperl's El Grande Plant in Antonito, Colorado. In its motion, Dicaperl states that, upon receipt of the proposed assessment, an employee new to the mail processing position failed to bring it to management's attention. Mot. at 2. Dicaperl explains that, although the return receipt on the penalty proposal was signed on August 13, 2004, the employee who signed it was not familiar with procedures regarding civil penalties and, as a consequence, Dicaperl failed to timely file a hearing request. Id. at 2-3. A copy of Dicaperl's contest of civil penalty is attached to its motion. Dicaperl did not provide any other supporting documentation. The Secretary states that she does not oppose Dicaperl's request for relief.

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 Dicaperl'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 Dicaperl'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.

______
Michael F. Duffy, Chairman

______
Mary Lu Jordan, Commissioner

______
Stanley C. Suboleski, Commissioner

______
Michael G. Young, Commissioner

Distribution:

Karen L. Johnson, Esq.

Jackson Kelly, PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, 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 Ave., N.W., Suite 9500

Washington, D.C. 20001