Secretary of Labor v. FLSmidth, Inc. (Commission decision, April 7, 2016)

Plain-English summary

FLSmidth sent payment for uncontested citations and its notice contesting other citations to MSHA's St. Louis payment office. After a delinquency notice exposed the mistake, the company paid the remaining balance to avoid delinquent status while preserving its desire to contest. The Secretary confirmed both payments and did not oppose reopening. The Commission reopened the final assessment in the interest of justice, remanded it for proceedings on the merits, and required a penalty petition within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The paid final assessment was reopened and remanded for a penalty contest.
• Key point: Paying an assessment to avoid delinquency does not necessarily waive a contest that was timely prepared but sent to the wrong MSHA office.

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.

FLSMIDTH,
INC.

:

:

:

:

:

:

:

Docket
No. WEST 2015-863-M

A.C.
No. 05-004822-381975 G2X

BEFORE:  Jordan,
Chairman; 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 August 21, 2015, the Commission received from FLSmidth, Inc. (“FLSmidth”) 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 23, 2015, and became a final order of the Commission on June 22, 2015. FLSmidth asserts that it erroneously sent both the remittance for the uncontested citations and the notice of contest for the cases it sought to contest to MSHA’s St. Louis, Missouri payment and processing office. FLSmidth claims that it discovered the mistake after receiving a delinquency letter from MSHA. The Secretary confirms that MSHA received a check dated June 10, 2015, in the amount of the uncontested citations, and that it mailed a delinquency letter to FLSmidth on August 7, 2015. FLSmidth states that it paid the balance of the penalties in order to avoid being considered delinquent, but still wishes to contest the citations. The Secretary confirms that MSHA received a second check from FLSmidth dated August 20, 2015. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed FLSmidth’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/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Bill
Madea

Regional
HSE Manager

FLSmidth
Inc.

2040
Avenue C

Bethlehem,
PA 18017-2188

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] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 30 U.S.C. § 823(c).