Secretary of Labor v. United Rentals Northwest (Commission decision, April 28, 2017)

Plain-English summary

United Rentals intended to contest a penalty assessment but said neither of the two employees responsible for MSHA assessments received it. MSHA applied an unrelated overpayment to the penalty, so the operator received no delinquency notice and learned of the final assessment only through a show-cause order in its related contest case. United Rentals moved to reopen within 30 days, and the Secretary did not oppose relief. The Commission reopened the assessment and remanded for the penalty proceeding to continue.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: Reopening was appropriate where an unrelated credit prevented notice of delinquency and the operator acted promptly after learning of the assessment.

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.

UNITED
RENTALS NORTHWEST

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:

:

:

:

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Docket
No. WEST 2016-668-M

A.C.
No. 02-00144-370248 D113

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 October 20, 2015, the Commission received from United Rentals Northwest (“United Rentals”) 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 January 2, 2015, and became a final order of the Commission on February 1, 2015. [1] United Rentals asserts that it never received the penalty assessment in this matter. The operator avers that it had contested the citation at issue, which was contained in Docket No. WEST 2016-225-RM, and was monitoring the mail for the assessment with intent to contest it as well. United Rentals claims that it had two employees tasked with responding to MSHA assessments and arranging for payments and that neither received the assessment here. The operator received no deficiency notice because MSHA applied an overpayment on an unrelated issue to satisfy the assessment in this matter. United Rentals asserts that it only learned of the assessment on September 14, 2015, when it received an Order to Show Cause in the contest docket stating that the assessment had been paid. United Rentals responded by filing the instant motion less than thirty days after receiving the Show Cause Order. The Secretary does not oppose the request to reopen.

Having
reviewed United Rentals request and the
Secretary’s response, 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:

Nathan
R. Reinmiller, Esq.

Alverson,
Taylor, Mortensen & Sanders

7401
W. Charleston Boulevard

Las
Vegas, NV 89117

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

[1] MSHA asserts
the assessment became a final order “30 days after receipt on February 13, 2015.” It further claims that delivery was made via USPS Certified Mail. However, there is no proof of “receipt” on January 2 or January 14, or other explanation for the calculation of the 30-day period.