Secretary of Labor v. Montana Rock & Stone, LLP (Commission decision, May 18, 2015)

Plain-English summary

Montana Rock & Stone received an MSHA penalty contest form listing citation numbers and proposed penalties but said it did not receive many of the underlying citations. Without the citation documents, the operator said it could not determine which penalties to contest. It sent MSHA a letter requesting the missing citations one week after receiving the assessment. The Secretary did not oppose reopening but reminded the operator that future contests must be filed within 30 days. The Commission reopened the final assessment in the interest of justice and remanded the matter for further proceedings, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: An operator may obtain reopening when missing citation documents prevented an informed contest and it promptly requested the records from MSHA.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. WEST 2014-904-M

v.                                              
 :        A.C. No. 24-02604-349861     

:                   

MONTANA
ROCK & STONE, LLP               :

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 July 31, 2014, the Commission received from Montana Rock & Stone (“Montana Rock”) 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 May 14, 2014, and became a final order of the Commission on June 13, 2014. Montana Rock asserts that it only received the contest form containing the citation numbers and their proposed penalties from MSHA, without receiving many of the citations themselves. Without being able to review many of the actual citations, Montana Rock argues that it had no basis upon which to decide which citations to contest. The operator offers a letter that it sent to MSHA on May 21, 2014, requesting the Secretary to send them the remaining citations. The Secretary does not oppose the request to reopen. However, he urges the operator to take steps to ensure that future penalty contests are timely contested within 30 days of receipt.

Having
reviewed Montana Rock’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/ 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

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