Secretary of Labor v. Peabody Twentymile Mining, LLC (Commission decision, March 14, 2018)

Plain-English summary

Peabody Twentymile Mining asked the Commission to reopen penalties that became final after an employee failed to send the intended contests to the correct MSHA office. The employee had previously handled contests properly, and the company discovered the error through MSHA's data system only a few days after the penalties became final. Twentymile filed its reopening request the next day, and the Secretary did not oppose relief. The Commission found that the filing failure was a mistake followed by prompt corrective action. It reopened the matter, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a) and Federal Rule of Civil Procedure 60(b)
• Outcome: The final penalty assessment was reopened and remanded, with the Secretary ordered to file a penalty petition within 45 days.
• Key point: A promptly discovered clerical failure to send intended contests to the correct MSHA office supported reopening when the operator acted the next day.

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.

PEABODY
TWENTYMILE MINING, 

LLC

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Docket
No. WEST 2016-696

A.C.
No. 05-03836-413724

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 September 7, 2016, the Commission received from Peabody Twentymile Mining, LLC (“Twentymile”) 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 September 2, 2016. Twentymile asserts that the employee responsible for processing assessments sent payments for the citations the operator did not intend to contest, but inadvertently failed to forward the contests of the other penalties to the MSHA office in Arlington, VA. The employee had previously filed contests in the proper manner and is no longer employed by Twentymile. On September 6, 2016, the operator learned from MSHA’s Mine Data Retrieval Site that the citations had not been properly contested and filed the request to reopen the next day. The Secretary does not oppose the request to reopen.

Having
reviewed Twentymile’s request and the
Secretary’s response, we find that the operator mistakenly failed to file the contest with the appropriate MSHA Office. However, the operator recognized its mistake just a few days after the citations became final and quickly filed the instant request to reopen. 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:

Christopher
G. Peterson

Jackson
Kelly, PLLC

1099
18 th Street, Suite 2150

Denver,
CO 80202

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