Secretary of Labor v. Chase Crushing, LLC (Commission decision, September 14, 2017)

Plain-English summary

Chase Crushing timely contested two penalty assessments arising from the same inspection but mistakenly omitted a third assessment issued on the same day. Its general manager believed that the third assessment had also been contested, and the company requested reopening immediately after receiving a delinquency notice. The Secretary did not oppose the request. The Commission found that the mistaken belief justified relief, 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: A mistakenly omitted contest may be reopened when related assessments were timely contested and the operator promptly seeks relief after discovering the error.

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.

CHASE
CRUSHING, LLC

:

:

:

:

:

:

:

Docket
No. WEST 2016-657-M

A.C.
No. 26-02406-409449

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 August 18, 2016, the Commission received from Chase Crushing, LLC (“Chase”) 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 May 11, 2016, and thus became a final order of the Commission on June 10, 2016.  On July 26, 2015, the Secretary mailed a delinquency notice to Chase regarding the civil penalty.

Chase asserts that it mistakenly
believed that it had contested this matter.  It states that two other penalty assessments related to the same inspection as the instant matter were issued on the same day as this assessment and were timely contested.  Chase argues that it always intended to contest this assessment.  Chase’s General Manager believed that the instant assessment had also been previously contested.  Upon learning of the mistake through a delinquency notice, Chase immediately requested reopening.  The Secretary does not oppose the request to reopen.

Having
reviewed Chase’s request and the Secretary’s
response, we determine that the operator failed to timely contest this assessment because it mistakenly believed that it had already filed its notice.  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:

Josh
Schultz, Esq.

Law
Offices of Adele L. Abrams, P.C.

1625
17 th St.

Denver,
CO 80202

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