Secretary of Labor v. San Benito Supply (Commission decision, March 5, 2018)

Plain-English summary

San Benito Supply received a proposed assessment and mailed its notice of contest by certified mail on the final day of the 30-day period. MSHA received the parcel six days later and initially treated the contest as untimely. In responding to the reopening motion, the Secretary changed position and conceded that the contest had been timely filed. The Commission agreed that the assessment never became final. It treated the reopening request as moot and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The contest was held timely, the reopening motion was moot, and the case was remanded.
• Key point: A notice mailed by certified mail on the contest deadline was timely even though MSHA received it several days later.

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.

SAN
BENITO SUPPLY

:

:

:

:

:

:

:

Docket
No. WEST 2017-388-M

A.C.
No. 04-05653-419793

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 May 2, 2017, the Commission received from San Benito Supply (“San Benito”) a motion seeking to reopen a penalty assessment that appeared to have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.  § 815(a).

On
September 19, 2016, San Benito received a proposed penalty assessment from the Secretary. On October 19, 2016, the proposed assessment was deemed a final order of the Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days. [1]

San
Benito asserts that it timely contested the proposed assessment on October 19, 2016. The operator provided certified mail receipt from the United States Postal Service showing that a parcel was sent on that date. According to a letter dated January 17, 2017, the Secretary the initially believed the contest was untimely because it was not received by MSHA until October 25, 2016. However, on May 19, 2017, the Secretary filed a response to the request to reopen in which he stated that he does not oppose the request to reopen and now concedes that the matter was timely contested. The Secretary suggests that the reopening request be dismissed as moot.

We agree with the Secretary.
San Benito’s contest of the proposed assessment was timely filed. Accordingly, the operator’s motion to reopen is moot, and this case is remanded 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.

/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:

Ann
Hillyard

San
Benito Supply

1060
Nash Road

Hollister,
CA 95023

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

[1] Section 105(a)
states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a).