Secretary of Labor v. Pete Lien and Sons, Inc. (Commission decision, May 11, 2017)

Plain-English summary

Pete Lien and Sons intended to contest two of eight citations and pay the remaining penalties. The company accidentally mailed the contest form with its payment to MSHA's St. Louis payment office instead of the Arlington contest office, and discovered the error after receiving a delinquency notice. The Commission treated the misrouting as an inadvertent mistake, reopened the final assessment in the interest of justice, and remanded for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: An operator may receive relief from finality when its timely intended contest was inadvertently sent to the wrong 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.

PETE
LIEN AND SONS, INC.

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Docket
No. WEST 2016-570-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 29, 2016, the Commission received from Pete Lien and 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) 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 another 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 March 17, 2016, and became a final order of the Commission on April 18, 2016. MSHA records further indicate that a delinquency notice was sent to Pete Lien on June 1, 2016.

The operator asserts that it intended to
contest two of the eight citations included in the proposed penalty assessment from MSHA and pay the remainder. The operator states that it inadvertently mailed the contest form, along with a check for the citations it did not wish to contest, to the MSHA payment office in St. Louis instead of to MSHA’s Arlington office. Pete Lien states that it realized this mistake only upon receiving MSHA’s delinquency notice. 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 Pete Lien’s request and the Secretary’s response, we conclude that the operator’s failure to properly file its contest form was an inadvertent mistake. 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