Secretary of Labor v. Nevada Ready Mix Corp. (Commission decision, August 3, 2022)

Plain-English summary

Nevada Ready Mix Corp. failed to contest a proposed penalty assessment within the Mine Act's 30-day deadline, causing the assessment to become a final Commission order. The company said it mistakenly marked the contest form, and counsel directed an assistant to correct it. The assistant did not file the corrected form on time because of remote work and disruption to normal office procedures during the COVID-19 pandemic. The Secretary did not oppose reopening but urged Nevada to prevent future late contests. The Commission found excusable neglect, reopened the assessment, and remanded the matter for penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and the matter was remanded for further proceedings.
• Key point: A correction missed amid pandemic-related remote-work disruption qualified as excusable neglect.

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.

NEVADA
READY MIX CORP

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Docket
No. WEST 2020-0401

A.C.
No. 26-02142-513613

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 August 26, 2020, the Commission received from Nevada Ready Mix Corp (“Nevada”) 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 May 7, 2020, and became a final order of the Commission on June 8, 2020. Nevada asserts that it had mistakenly marked the contest form. Counsel for the operator noticed the mistake, and directed an assistant to correct the form. However, the assistant failed to timely file a corrected contest form due in part to her remote work setting and the disruption in normal office procedures caused by the COVID-19 pandemic. 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 Nevada’s request and the Secretary’s response, we find that the failure to timely file was the result of excusable neglect. 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:

William K. Doran,
Esq.

Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.

1909 K Street,
N.W., Suite 1000

Washington, DC
20006

[email protected]

Emily Toler Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

April Nelson, Esq.

Associate
Solicitor

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Melanie Garris

Chief Office of
Civil Penalty Compliance

U.S. Department of
Labor

Office of
Assessments

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520 N

Washington, DC
20004-1710

[email protected]