Bay Materials, LLC (Commission decision, May 21, 2013)

Plain-English summary

Bay Materials asked the Commission to reopen a penalty assessment that became final after its counsel received the assessment but took no action for almost two months. The company was a small operator with limited experience in the assessment process, and the Secretary did not oppose reopening because Bay moved promptly after receiving a delinquency notice. The Commission warned counsel to discuss the assessment process with clients and verify contest deadlines immediately instead of waiting for delinquency notices. In the interests of justice, it reopened the assessment, remanded the matter, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: The Commission granted relief but warned counsel that inaction after receiving an assessment can jeopardize future reopening requests.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

May 21, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

BAY MATERIALS, LLC   

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Docket No. WEST 2012-1223-M

A.C. No. 24-02221-286321

BEFORE: Jordan, Chairman;
Young and Nakamura, 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 July 18, 2012, the Commission received from Bay Materials, LLC (“Bay”) a motion 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).

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).

MSHA’s record indicates that the
proposed assessment was delivered on April 24, 2012, and became a final order of the Commission on May 24, 2012. Bay’s counsel asserts that Bay forwarded the assessment to her on May 23, 2012 without indicating whether it wished to contest it. Counsel took no action until Bay received a delinquency notice dated July 10, 2012. The Secretary does not oppose the request to reopen based primarily on the timeliness of the request to reopen after receipt of the delinquency notice. The Secretary cautions that he may oppose future penalty contests that are not timely filed.

We
note that Bay is a small operator without significant experience with the assessment process. This, however, does not explain counsel’s inaction for almost two months between May 23 and July 17. We urge counsel to discuss the assessment process with her clients and verify contest due dates as soon as she receives the proposed assessment. Counsel should take all steps necessary to ensure that penalty contests are filed timely, rather than waiting for the delinquency notice.

Having
reviewed Bay’s request and the Secretary’s
response, in the interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710