Secretary of Labor v. Great Northwest, Inc. (Commission decision, May 4, 2018)

Plain-English summary

Great Northwest intended to contest part of a proposed penalty assessment while paying the uncontested citations. It mistakenly sent both the contest form and payment to MSHA's St. Louis office instead of sending the contest to Arlington. MSHA received the payment, but the contested penalty became a final order. Great Northwest moved to reopen immediately after learning of the problem from a delinquency notice, had filed no other reopening motions in the preceding two years, and faced no opposition from the Secretary. The Commission reopened the assessment and remanded for merits proceedings.

Decision snapshot

• Cited authority: Section 105(a) of the Mine Act, 30 U.S.C. § 815(a)
• Outcome: The penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Prompt action after a documented address mistake can justify relief from a final penalty order entered by default.

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.

GREAT
NORTHWEST, INC.

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Docket
No. WEST 2017-671-M

A.C.
No. 50-01684-441334

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 12, 2017, the Commission received from Great Northwest, Inc. (“Great Northwest”) 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 June 19, 2017, and became a final order of the Commission on July 19, 2017. Great Northwest asserts that it inadvertently sent the contest form to MSHA’s St. Louis office with a check for uncontested citations, instead of to the Arlington office. The Secretary asserts that MSHA received payment for the uncontested citations, and that a delinquency notice was sent on September 5, 2017. Upon learning of its mistake, Great Northwest contends that it immediately filed a request to reopen. Great Northwest has not filed any other motions to reopen with the Commission in the last two years. 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 Great Northwest’s request and the
Secretary’s response, we find that the operator inadvertently sent its notice of contest to the wrong address. 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:

Anton
K. Johansen

Vice
President

Great
Northwest, Inc.

P.O.
Box 74646

Fairbanks,
AK 99707

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