Secretary of Labor v. JMAC Resources

Plain-English summary

JMAC Resources mailed its notice contesting a proposed penalty on April 22, 2021, within the Mine Act's 30-day deadline. MSHA did not receive the notice, and the assessment became a final Commission order on May 6. JMAC said the notice was lost in the postal system and noted that delivery of the proposed assessment itself had also been delayed. The Secretary did not oppose reopening but urged JMAC to prevent future late contests. The Commission found that mail delivery problems inadvertently kept the contest from reaching MSHA, reopened the assessment, and remanded the case 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: Proof that a timely mailed contest failed to reach MSHA because of delivery problems supported reopening.

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.

JMAC
RESOURCES

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:

:

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Docket
No. WEST 2021-0266

A.C.
No. 10-02251-530088

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 July 13, 2021, the Commission received from
JMAC Resources (“JMAC”) 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 6, 2021, and
became a final order of the Commission on May 6, 2021. JMAC asserts that the
notice of contest was timely mailed on April 22, 2021, but was not received by
MSHA because it was lost in the U.S. Postal system. JMAC notes that this was
not the first instance of mail delivery issues, as receipt of the proposed
assessment was also delayed. 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 JMAC’s request and the Secretary’s
response, we find that the notice of contest inadvertently failed to
reach MSHA due to mail delivery issues. 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:

Terry
Gadbaw

General
Manager

JMAC
Resources

3151
N. Beck Road

Post
Falls, ID 58504

[email protected]

Emily
Toler-Scott, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]