Secretary of Labor v. Brand Energy & Infrastructure Services (Commission decision, March 27, 2015)

Plain-English summary

Brand Energy's counsel contested the underlying citation but did not receive the later penalty assessment because MSHA sent it to the company's Georgia address rather than its California regional office. The assessment became final even though delivery was acknowledged at the address of record. With no opposition from the Secretary, the Commission reopened the assessment in the interest of justice, remanded for proceedings on the merits, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for penalty proceedings.
• Key point: An assessment routed away from the personnel handling the contest may be reopened, but operators remain responsible for reliable handling at their 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

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

BRAND ENERGY &

INFRASTRUCTURE SERVICES

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Docket No.

A.C. No.

WEST 2014-526-M

26-02673-337166 D405

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On April 1, 2014, the Commission received from Brand Energy and Infrastructure Services (“Brand”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on November 25, 2013, and became a final order of the Commission on December 26, 2013. Brand asserts that its counsel, who contested the underlying citation, did not receive the proposed assessment as it was mailed to a company address in Georgia, rather than to its regional office in California. The Secretary does not oppose the request to reopen, but he notes that the proposed assessment was delivered to the company’s address of record, where receipt was acknowledged, and urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed
Brand’s request and the Secretary’s response, in the interest 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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner