Secretary of Labor v. Marigold Mining Company (Commission decision, March 6, 2017)

Plain-English summary

Marigold Mining Company asked the Commission to reopen a penalty assessment after its notice contesting three citations did not reach MSHA's contest office. The operator had mailed payment for a fourth citation and included an assessment form showing the other contests, but it did not use certified mail and could not track the missing notice. MSHA's payment office received the partial payment and marked assessment form, and the Secretary did not oppose reopening. Marigold also changed its mailing procedures to prevent a recurrence. The Commission reopened the final assessment in the interest of justice and remanded the case for ordinary penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); Commission Rules 1(b) and 28
• Outcome: The final assessment was reopened and the matter was remanded to the Chief Administrative Law Judge.
• Key point: Evidence that a timely contest was mailed but lost, combined with corrective procedures and no opposition, can support reopening a final penalty 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.

MARIGOLD
MINING COMPANY,

:

:

:

:

:

:

:

Docket
No. WEST 2016-261-M

A.C.
No. 26-02081-395678

BEFORE:  Althen,
Acting Chairman; Jordan, Young, and Cohen, 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 February 9, 2016, the Commission received from Marigold Mining Company (“Marigold”) 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 9, 2015, and became a final order of the Commission on December 9, 2015. Marigold asserts that its timely notice of contest was lost in the mail. Specifically, it mailed payment for one of the four citations to the MSHA payment office in St. Louis, together with the proposed assessment form showing that the other three citations were being contested, and also mailed a copy of the assessment form to MSHA’s Arlington, Virginia office.  Marigold was unable to track the notice of contest because it did not send the contest via certified mail. Marigold further states that it has changed its mailing procedures to prevent this issue from recurring.

The
Secretary does not oppose the request to reopen but notes that he did not receive a notice of contest for this proposed assessment. The Secretary’s payment office in St. Louis did receive the partial payment check and the assessment form showing the contests. The Secretary urges the operator to take steps to ensure that future penalty contests are timely filed and mailed to the proper address.

Having
reviewed Marigold’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/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Steve
Chambliss

People
& Safety Manager

Marigold
Mining Company

P.O.
Box 160

Valmy,
NV 89438

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