Secretary of Labor v. Croell Redi-Mix, Inc. (Commission decision, September 29, 2017)

Plain-English summary

Croell Redi-Mix received two proposed penalty assessments on different dates after one mine inspection. It mistakenly believed both assessments shared the later deadline and waited to return the first contest until after receiving the second assessment. MSHA received the first contest nine days late, and Croell learned of the error through a delinquency letter. The Secretary did not oppose relief because the delay was short, and the Commission reopened the assessment and remanded for ordinary penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); Federal Rule of Civil Procedure 60(b)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A short late filing caused by confusion between related assessments may warrant reopening, but each assessment has its own contest deadline.

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.

CROELL
REDI-MIX

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:

:

:

:

:

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Docket
No. WEST 2016-404-M

A.C.
No. 39-01494-401433

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 April 13, 2016, the Commission received from Croell Redi-Mix, (“Croell”) 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), 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 January 22, 2016, and became a final order of the Commission on February 22, 2016. Croell asserts that it received two different proposed penalty assessments on separate dates following a single inspection of its mine. The operator avers that it did not return its contest regarding the first assessment until it had already received the second, believing that they would have the same deadline. The Secretary confirmed that MSHA received the late-filed contest in this matter postmarked March 1, 2016. The operator did not learn of its error until it received a delinquency letter, which was sent March 17, 2016.

The Secretary does not oppose the
request to reopen, but notes that his sole reason for not opposing reopening is because the contest was mailed only nine days late. The Secretary urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed Croell’s request and the Secretary’s
response, we find that it mistakenly waited until it had received a related assessment before filings its contest. 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:

Julie
Ewing, CRM

Health
and Safety Director

230
Croell Drive

P.O.
Box 1352

Sundance,
WY 82729

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

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