Secretary of Labor v. Blue Mountain Energy, Inc. (Commission decision, April 17, 2023)

Plain-English summary

Blue Mountain Energy intended to contest one citation after MSHA upheld it at a safety and health conference. The company mistakenly mailed its contest to the Commission and an MSHA conference litigation representative instead of the correct MSHA address. The Secretary did not oppose reopening but urged the operator to improve its filing process. The Commission found sufficient evidence of mistake and good faith based on the explanation, the earlier conference effort, and the Secretary's position. It reopened the penalty for the citation and remanded the matter, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The penalty for Citation No. 9030973 was reopened and remanded for further proceedings.
• Key point: Sending a contest to the wrong recipients may support reopening when the record shows a genuine intent to contest and a good-faith filing mistake.

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.

BLUE
MOUNTAIN ENERGY, INC.

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:

:

:

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Docket
No. WEST 2021-0189

A.C.
No. 05-03505-517587

BEFORE: 
Jordan, Chair; Althen, Rajkovich, and Baker, 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 22, 2021, the Commission received from Blue Mountain Energy, Inc. (“Blue Mountain”) 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 July 13, 2020. On August 4, 2020, MSHA received a partial payment of the assessment. The remainder of the assessment became a final order of the Commission on August 12, 2020. On September 28, 2020, MSHA sent the operator a delinquency notice.

Blue Mountain asserts that it intended to
contest Citation No. 9030973 ever since the citation at issue was upheld during a safety and health conference on June 17, 2020. However, on July 16, 2020, Blue Mountain claims that it inadvertently mailed the contest to the Federal Mine Safety and Health Review Commission and to a Conference Litigation Representative rather than to the correct MSHA address. 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 Blue Mountain’s request and the Secretary’s response, we find there is sufficient evidence that mistakes were made, thus satisfying the Rule 60(b) criteria. We find that Blue Mountain acted in good faith, as demonstrated by its explanation for its failure to timely contest the assessment, its earlier efforts to engage in a conference, and the Secretary’s non-opposition. In the interest of justice, we hereby reopen the penalty for Citation No. 9030973 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/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Christopher
G. Peterson

Fisher
& Phillips LLP

1125
17 th Street, Suite 2400

Denver,
CO 80202

[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]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

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

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]