Brahma Group, Inc.

Plain-English summary

Brahma Group timely contested two citations but said it never received the later penalty assessment or delinquency notices because MSHA repeatedly used the wrong address. The Secretary said the documents went to Brahma's address of record and noted that operators must keep their official address current. The Commission explained that proper mailing could defeat reopening, while mailing to an incorrect address could mean the assessment never became final. It remanded for the Chief ALJ to determine which address MSHA used and whether relief was warranted.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 41.10, 41.12, and 41.30; 30 U.S.C. § 815(a)
• Outcome: The matter was remanded to determine whether the assessment became final and whether reopening should be granted.
• Key point: Finality turns on whether MSHA mailed the assessment to the operator's correct official address and whether the operator kept that address current.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 11, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

BRAHMA GROUP, INC.

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Docket No. WEST 2009-109-M
A.C. No. 04-00011-136931 H409

BEFORE: Duffy, 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. (2006) (“Mine Act”). On November 3, 2008, the Commission received from
Brahma Group, Inc. (“Brahma”) a letter 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 two citations to Brahma. Thereafter, on October 17, Brahma filed a notice of
contest of the citations. According to Brahma’s director of risk management, since the time
Brahma filed the contest, it heard nothing further until it recently was informed that collections
efforts had been commenced to collect penalties arising out of the citations. Brahma’s director
further states that Brahma had been unaware of the proposed penalty assessment and collection
efforts because notices were repeatedly sent to the wrong address.

In response, the Secretary states that she does not oppose Brahma’s request for relief.
However, the Secretary notes that the proposed assessment and delinquency notice were mailed
to the address of record. The Secretary attached to her response a copy of the Contractor Information Report containing Brahma’s name and address. The Secretary added that Brahma
should take necessary steps to ensure that the address of record is accurate.

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 mistake, inadvertence, or excusable neglect.
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).

It is an operator’s responsibility to file with MSHA the address of a mine and any changes
of address. 30 C.F.R. §§ 41.10, 41.12. Operators may request service by delivery to another
appropriate address provided by the operator. 30 C.F.R. § 41.30.

It is unclear from the record whether MSHA mailed the proposed assessment to Brahma’s
official address of record at the time of assessment and whether Brahma maintained its correct
address with MSHA. If MSHA sent the proposed assessment to Brahma’s official address of
record, grounds may exist for denying Brahma’s request for relief. Mass Transport, Inc., 30
FMSHRC 997, 999 (Nov. 2008). If, however, MSHA mailed the proposed assessment to an
incorrect address, the proposed assessment may not have become a final Commission order and
Brahma’s request may be moot.

Having reviewed Brahma’s request and the Secretary’s response, we remand this matter
to the Chief Administrative Law Judge for a determination of whether Brahma’s request should
be granted. We ask the Chief Judge, in considering the matter, to resolve the dispute over
whether MSHA sent the proposed assessment to Brahma’s official address of record at the time
of assessment. The Judge shall order further appropriate proceedings based upon that
determination in accordance with principles described herein, the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner    

Robert F. Cohen, Jr., Commissioner

Distribution:

Robert S. Fox

Director of Risk Mngmt.

Brahma Group, Inc.

1132 South 500 West

Salt Lake City, UT 84101

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. Dept. 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