Secretary of Labor v. Southwest Energy, LLC (Commission decision, May 14, 2021)

Plain-English summary

Southwest Energy attempted to contest a proposed penalty but mailed the form to a St. Louis post office box instead of MSHA's Civil Penalty Compliance Office in Arlington. After discovering the addressing mistake, the company tried to resend the contest but encountered pandemic-related mail problems. The Secretary did not oppose reopening and urged Southwest to use the correct address or electronic filing in the future. The Commission found that inadvertence or mistake caused the missed deadline. It reopened the assessment and remanded the case, with a penalty petition due within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: Sending a contest to the wrong address by mistake supported reopening when the operator promptly tried to correct the error.

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.

SOUTHWEST
ENERGY LLC

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Docket
No. WEST 2020-0248-M

A.C.
No. 26-01089-507993

BEFORE:  Traynor,
Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On April 21, 2020, the Commission received from Southwest Energy (“Southwest”) 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 January 24 2020 and became a final order of the Commission on February 23, 2020. Southwest asserts that it timely contested the proposed penalty associated with Citation No. 9436503 but that it mistakenly sent the contest to P.O. Box 790390, St. Louis, Missouri, rather than to MSHA’s Civil Penalty Compliance Office in Arlington, Virginia. Upon discovering the mistake, the operator attempted to resend the contest to the correct address but was unable to do so due to mail issues associated with the pandemic. The Secretary does not oppose the request to reopen but urges the operator to take steps to ensure that future penalty contests are mailed to the correct address or filed electronically.

Having
reviewed Southwest’s request and the Secretary’s response, we find that Southwest failed to timely contest the penalties through inadvertence or mistake, and that such inadvertence or mistake constitutes good cause to reopen the penalty proceeding. 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Richard
Cass

Safety
& Training Manage

Southwest
Energy LLC

2040
W, Gardner Ln

Tucson,
AZ 85705

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Kristin
R. Murphy, Esq.

Office
of the Solicitor

U.S.
Department of Labor

61
Forsyth Street, Room 7T10

Atlanta,
GA 30303

[email protected]

Archith
Ramkumar, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]