Secretary of Labor v. Hoover Excavating, Inc. (Commission decision, February 12, 2013)

Plain-English summary

Hoover Excavating did not timely contest an MSHA proposed penalty and later asked the Commission to reopen the final assessment. Hoover said it never received the assessment and learned of the delinquency when its lawyer searched MSHA's data system. The Secretary did not oppose reopening and reported that the mailing to Hoover's address of record had been returned unclaimed. The Commission reopened the matter in the interests of justice and remanded it for penalty proceedings. It also relayed the Secretary's warning that Hoover should keep its address current and that future reopening requests might be opposed.

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: An unclaimed assessment mailing supported unopposed reopening, but the operator was warned to maintain an accurate address of record.

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.

HOOVER EXCAVATING,
INC.
:
:
:
:
:
:
:

Docket No. WEST
2012-919-M
A.C. No. 35-03510-274340

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 May 16, 2012, the Commission received from Hoover Excavating, Inc. (“Hoover”) 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).

Hoover
asserts that it did not receive the proposed assessment. The delinquency was discovered by Hoover’s counsel on May 4, 2012, during a search on the Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) Mine Data Retrieval System. The Secretary does not oppose the request to reopen, and states that the proposed assessment was mailed to Hoover’s address of record and returned unclaimed to MSHA. The Secretary urges the operator to ensure that its address of record is accurate, so that future penalty assessments can be received at that address. The Secretary cautions that she may oppose future motions to reopen penalty assessments that are not timely contested.

Having
reviewed Hoover’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:

Katie Ireland, Esq.,

Ireland & Ireland

P.O. Box 273

Banks, OR 97106

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