Secretary of Labor v. Victory Rock Texas, LLC

Plain-English summary

Victory Rock Texas sought to reopen a penalty assessment after believing that it had successfully contested the citation. The operator said it later paid the penalty by mistake because it thought the amount belonged to another case. It supplied completed contest and remittance forms but no proof that MSHA received the contest notice. The Secretary did not oppose reopening. The Commission found mistake, inadvertence, and excusable neglect, noting that the self-represented operator had no history of other defaults or reopening motions in the prior 24 months. It reopened the assessment and remanded the matter for further proceedings.

Decision snapshot

• Cited authority: None
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: Documented confusion about a contest's status supported reopening for a self-represented operator without a history of defaults.

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.

VICTORY ROCK TEXAS, LLC

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Docket No. WEST 2020-0090-M

A.C. No. 41-05101-486904

BEFORE:  Rajkovich, Chairman; Althen and Traynor, 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 November 19, 2019, the Commission received from Victory
Rock Texas, LLC, (“Victory Rock”) 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 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 April 19, 2019, and became a
final order of the Commission on May 19, 2019. Victory Rock’s motion says that
the proposed assessment in this matter was delivered after it believed it had
successfully contested the citation. It says it mistakenly paid the penalty,
believing it was due in another case, after receiving MSHA’s July 5, 2019,
delinquency notice to the operator.  

The motion includes
completed contest and remittance forms, and states that the operator’s check
for the uncontested penalties was mailed at the same time as its notice of
contest and was deposited by MSHA. However, the operator does not provide proof
of delivery of the notice of contest. The Secretary does not oppose the requests
to reopen, but urges the operator to take steps to ensure that future penalty
contests are timely filed.

Having reviewed Victory Rock’s request and the Secretary’s response, we
find that the operator has sufficiently explained its failure to timely contest
the citations at issue as the result of inadvertence, mistake, and excusable
neglect. The operator states that it was
confused about the status of its contest, and provides facts that support this
contention. This is a pro se operator with one other pending motion to reopen
and no history of other defaults or motions to reopen in the past 24 months.  

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.

/s/ Marco M. Rajkovich,
Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution (by e-mail):

Scott Cusick

Director

Victory Rock Texas, LLC

[email protected]

Emily Toler Scott , Esq.

Office of the Solicitor

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

[email protected]