Secretary of Labor v. Westside Trucking (Commission decision, October 22, 2009)

Plain-English summary

Westside Trucking asked to reopen a penalty assessment after the employee responsible for company paperwork suddenly left. Its owner also described serious financial problems, while the Secretary characterized the company's explanation as conclusory but supported a further opportunity to respond. The Commission remanded the matter for a judge to determine why Westside missed the 30-day deadline and which citations it intended to contest. The assessment would be reopened only if the judge found good cause.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for a determination of good cause and the citations Westside intended to contest.
• Key point: A conclusory late-filing explanation may warrant factual development, but relief depends on showing good cause for missing the contest deadline.

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

October 22, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

WESTSIDE TRUCKING

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Docket No. WEST 2009-650-M

A.C. No. 45-03551-172177

BEFORE: Jordan, Chairman; Duffy, 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 March 26, 2009, the Commission received from Westside Trucking (“Westside”) a letter requesting 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).

We have held, however, 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).

Westside’s owner states, among other things, that the employee who was responsible for handling all the company’s paperwork suddenly left the company, leaving him unaware of the citations. He also states that the company is in dire financial circumstances. The Secretary states that Westside’s assertions are “conclusory,” but that Westside should be given an opportunity to respond further and show whether it is entitled to a reopening of the penalty assessment.

Having reviewed Westside’s request and the Secretary’s response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Westside’s failure to timely contest the proposed assessment and whether relief from the final order should be granted. Specifically, the Judge should ascertain why Westside failed to return the proposed assessment form within 30 days of receiving it and which citations it wanted to contest. If it is determined that relief from the final order is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution:

John Bredfield

Westside Trucking

10050 Barnes Drive

Castle Rock, WA 98611

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