Secretary of Labor v. Jim Reeves, employee of Rodeo Creek Gold, Inc.

Plain-English summary

MSHA delivered an individual penalty assessment for Jim Reeves to the mine where he had worked as a shift foreman. Reeves said he never personally received it, and the Secretary conceded that personal service may not have occurred. Because the 30-day contest period begins upon the individual's receipt, the Commission concluded that the assessment may never have become final. It denied the reopening motion as moot and remanded the unresolved penalty matter for further proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.26, 2700.27; 30 U.S.C. § 820(c)
• Outcome: The reopening motion was denied as moot, and the individual penalty matter was remanded.
• Key point: Delivery to a mine does not necessarily start an individual's contest deadline when the record does not establish that the charged person personally received the assessment.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),       

v.

JIM
REEVES, employee of RODEO                  

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Docket
No. WEST 2014-83-M     

A.C.
No. 26-02535-289894 A

CREEK GOLD, INC.                  
  :

BEFORE:  Jordan,
Chairman; Young, Nakamura, and Althen, Commissioners[1]

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 November 26, 2013, the Commission
received a motion seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C.      
§ 820(c), that appeared to have become a final order of the Commission.

Under
the Commission’s Procedural Rules, an individual
charged under section 110(c) has 30 days following receipt of the
proposed penalty assessment within which to notify the Secretary of Labor that
he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual
fails to notify the Secretary, the proposed penalty assessment is deemed a
final order of the Commission. 29 C.F.R. § 2700.27.

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicate that the proposed assessment was delivered to Hollister mine, operated
by Rodeo Creek Gold, Inc. on May 23, 2012. Mr. Reeves was cited for a violation
while he was a crew shift foreman at this mine. The proposed assessment appeared
to become a final order of the Commission on June 22, 2012. Mr. Reeves asserts
that he never personally received the proposed assessment. The Secretary concedes
that the proposed assessment may not have been successfully served on Mr.
Reeves. Therefore, the Secretary does not oppose the request to reopen.

Having reviewed Mr. Reeves’ request and the
Secretary’s response, we conclude that the proposed penalty assessment may
not have become a final order of the Commission, because Mr. Reeves may not
have personally received the proposed assessment. See 29 C.F.R. § 2700.26
(“[a] person has 30 days after receipt of the proposed penalty assessment
within which to notify the Secretary that he contests the proposed penalty assessment.”)
Accordingly, Mr. Reeves’ motion to reopen is moot, and this case is remanded 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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Patricia
A. Asack, P.C.

Attorney
at Law

630
E. Market

P.O.
Box 2307

Rockport,
TX 78381

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] Commissioner
Cohen has elected not to participate in this matter.