Secretary of Labor v. Pete Lien & Sons, Inc. (Commission decision, September 14, 2017)

Plain-English summary

Pete Lien intended to contest two citations but mailed its contest notice, together with payment for six other citations, to MSHA's payment-processing office in St. Louis. The company discovered the mistake after receiving a delinquency notice and revised its contest procedures so future notices would go to the correct address. The Secretary did not oppose reopening. The Commission found the error inadvertent, reopened the final assessment, and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge for penalty proceedings.
• Key point: Mailing a contest notice to the wrong MSHA address may justify reopening when the operator corrects its procedures and promptly seeks relief.

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.

PETE
LIEN & SONS, INC.

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Docket
No. WEST 2016-556-M

A.C.
No. 05-03222-405208

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 June 23, 2016, the Commission received from Pete Lien & Sons, Inc. (“Pete Lien”) 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 became a final order of the Commission on April 16, 2016. Pete Lien asserts that it promptly mailed its notice of contest regarding the two citations at issue here, along with payment for six other citations, to MSHA’s payment processing office in St. Louis. Pete Lien states that it only realized its mistake upon receipt of a delinquency notice from MSHA. Pete Lien asserts that it has revised its contest procedures to ensure that notices are sent to the correct address in the future. The Secretary does not oppose the request to reopen.

Having
reviewed Pete Lien’s request and the Secretary’s response, we determine that the operator inadvertently mailed the contest notice to the wrong address and has since corrected the company contest procedures to ensure that it does not happen again. Therefore, 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:

Holly
Lien

Pete
Lien & Sons

Division
Manager

P.O.
Box 440

Rapid
City, SD 57709

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