Secretary of Labor v. Upland Rock (Commission decision, September 29, 2017)

Plain-English summary

Upland Rock attempted to contest a penalty shortly after receiving the assessment, but postal records showed that its first certified mailing never left a California processing facility. The operator later sent a letter showing its intent to contest to a local MSHA office in Vacaville rather than the required Arlington office, and that letter also listed the wrong docket number. Upland Rock said it learned of the problem only after receiving a delinquency notice, had no other reopening requests in the prior two years, and faced no opposition from the Secretary. The Commission treated the addressing errors as mistakes, 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: Documented attempts to contest can support reopening when mailing and addressing errors prevent timely delivery to the proper 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.

UPLAND
ROCK

:

:

:

:

:

:

:

Docket
No. WEST 2016-465-M

A.C.
No. 04-05857-402321

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 May 10, 2016, the Commission received from Upland 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), 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 February 10, 2016, and became a final order of the Commission on March 11, 2016. Upland Rock asserts that it mailed its contest back to MSHA on February 12, 2016. The operator included certified mail receipts to show it attempted to send this form. [1] Similarly, Upland Rock argues that it mailed a letter to MSHA evidencing its intent to contest the citations on March 10, 2016. However, the mailing receipts accompanying the letter show that the document was sent to a local MSHA office in Vacaville, California, instead of to the MSHA office in Arlington, Virginia. [2] The Vacaville MSHA office received the letter on March 14, 2016. Upland Rock claims that it only learned that the Secretary had not properly received the documents it filed when it received a notice of delinquency on April 29, 2016. Upland Rock has not filed any other motions to reopen with the Commission in the last two years. 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 Upland Rock’s request and the
Secretary’s response, we find that mistakenly sent its contest documents to the wrong address. 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:

Neal
L. Grabowski

President

Upland
Rock

8780
19 th St.

Suite

373

Alta
Loma, CA 91701

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

[1] The certified
mail receipt provided by the operator does not contain a mailing address but indicates that the contest was sent to Washington, D.C. USPS records further indicate that the contest never left the mail processing facility in Rancho Cucamonga, CA. As contests are required to be mailed to MSHA’s headquarters in Arlington, VA, it is likely that USPS was unable to deliver the contest to the proper address.

[2] Adding to the
confusion in this matter, the March 10, 2016, letter listed the correct Assessment Control Number, No. 00402321, and the correct Order Number, No. 8788069, but an incorrect docket number. The docket listed in the mailed response, No. WEST 2016-241, does not contain the citation at issue here.