Secretary of Labor v. Bolinder Resources, LLC

Plain-English summary

Bolinder Resources asked the Commission to reopen an MSHA penalty assessment that had become final after it was not timely contested. The release does not state why Bolinder missed the contest deadline. The Secretary did not oppose the request. After reviewing the parties' submissions, the Commission reopened the matter in the interests of justice. It remanded the case for penalty proceedings and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded for penalty proceedings.
• Key point: The Commission granted unopposed reopening, although the published order does not describe the operator's reason for missing the deadline.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

February 12, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

BOLINDER RESOURCES,
LLC
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Docket No. WEST
2012-808-M
A.C. No. 42-01247-277547

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 April 20, 2012, the Commission received from Bolinder
Resources, LLC (“Bolinder”) 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). The
Secretary of Labor does not oppose the request to reopen.

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).

Having
reviewed Bolinder’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, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jason W. Hardin, Esq.,

Fabian & Clendenin

215 S. State St., Suite 1200

Salt Lake City, UT 84111

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