Secretary of Labor v. Barrick Turquoise Ridge, Inc.

Plain-English summary

Barrick's safety staff expected its accounting office to send a contest form together with payment for the citations the company accepted. Accounting followed its normal practice of sending only the $5,309 payment, so no contest reached MSHA by the deadline. The Commission explained that partial payment alone does not communicate an intent to contest and does not prevent default. The Secretary did not oppose reopening, however, and the Commission found the internal misunderstanding was a mistake justifying relief. It reopened and remanded the assessment for proceedings on the merits.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for a penalty contest.
• Key point: Partial payment does not substitute for a contest notice, but a documented first-time office misunderstanding may support reopening.

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.

BARRICK
TURQUOISE RIDGE, INC.

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Docket
No. WEST 2015-898-M

A.C.
No. 26-02286-383506

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 September 9, 2015, the Commission
received from Barrick Turquoise Ridge, Inc. (“Barrick”) 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 June 15, 2015, and
became a final order of the Commission on July 15, 2015. Barrick asserts that
safety and health group employees who were unfamiliar with the office’s contest
process failed to submit a contest form to MSHA. According to Barrick, these
employees did not submit the contest form because they mistakenly assumed that
Barrick’s accounting office would send a contest form to MSHA, along with a
check with payment for the citations that Barrick did not wish to contest. Barrick
states that the safety staff did not understand that the accounting office’s
usual practice was only to send payments to MSHA, and not contest forms. Barrick
further asserts that its timely partial payment reflects Barrick’s intent to
contest the penalty, and that as a result this case should not be in default
even though a contest form was not filed within the thirty-day deadline.

The Secretary confirms that MSHA
received a check dated July 13, 2015 in the amount of $5,309. The Secretary
also confirms that MSHA mailed a delinquency letter to Barrick on August 31,
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.

A timely partial payment is not sufficient to
indicate the operator’s intent to contest a citation and avoid a default. Having
reviewed Barrick’s request and the Secretary’s
response, however, we find that the actions of the safety and health group
constitute a mistake that justifies relief. 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:

Margaret
S. Lopez, Esq.

Lauren
M. Marino, Es q.

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

1909
K Street, N.W., Suite 1000

Washington,
DC 20006

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).