Calmat Company, d/b/a Vulcan Materials Company, Western Division (Commission decision, April 9, 2008)

Plain-English summary

MSHA assessed Calmat Company, doing business as Vulcan Materials Company, for an order and a citation. Vulcan said it timely sent its contest form to MSHA's local Western District office in California instead of the designated office in Virginia, and it supplied a return receipt from the California office. The Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to determine whether good cause existed for the filing mistake 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. § 815(a)
• Outcome: The assessment was remanded for a determination of good cause and entitlement to relief.
• Key point: Sending a contest to the wrong MSHA office can support reopening only after a good-cause determination.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

April 9, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

CALMAT COMPANY, d/b/a

VULCAN MATERIALS COMPANY,

WESTERN DIVISION

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Docket No. WEST 2008-312-M

A.C. No. 04-01924-128052

BEFORE: Duffy, Chairman; Jordan 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 January 7, 2008, the Commission received from Calmat Company, d/b/a/ Vulcan Materials Company, Western Division (“Vulcan”) a letter from counsel 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).

On October 3, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment, A.C. No. 000128052, to Vulcan for an order and a citation. Vulcan states that it inadvertently sent the form contesting the penalty assessment to MSHA’s local Western District office in Vacaville, California, instead of to the MSHA office located in Arlington, Virginia. Vulcan attached the return receipt allegedly indicating that the notice of contest was received by MSHA at its office in Vacaville. The Secretary states that she does not oppose Vulcan’s request to reopen the penalty assessment.

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 Vulcan’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Vulcan’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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Michael G. Young, Commissioner

Distribution:

Scott H. Dunham, Esq.,

O’Melveny & Myers, LLP,

400 South Hope Street,

Los Angeles, CA 90071-12899

W. Christian Schumann, Esq.,

Office of the Solicitor,

U.S. Department of Labor,

1100 Wilson Blvd., Room 2220,

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor,

1100 Wilson Blvd., 25th Floor,

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021