Secretary of Labor v. Robinson Nevada Mining Company

Plain-English summary

Robinson Nevada said it never received a proposed assessment that postal records showed was signed for by “C SMITH” in Ely, Nevada. The company had no employee by that name and learned of the assessment only after receiving a delinquency notice. It contacted MSHA the next day and promptly sought relief. The Secretary did not oppose reopening. The Commission found that an inadvertent delivery mistake had occurred, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: Delivery confirmed by an unknown signer may establish an inadvertent mistake when the operator did not receive the assessment.

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.

ROBINSON
NEVADA MINING

COMPANY

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Docket
No. WEST 2023-0382

A.C.
No. 26-01916-577178

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BEFORE:
Jordan, Chair; Althen, Rajkovich, Baker, and Marvit, 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 September 7, 2023, the Commission
received from Robinson Nevada Mining Company (“Robinson”) 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).

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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 22, 2023, and became
a final order of the Commission on June 21, 2023. Robinson asserts that it
never received the proposed assessment because of a mistake from the U.S Post
Office. According to the operator, it received a delinquency notice from MSHA
on August 23, 2023. On August 24, 2023, it contacted MSHA Assessments to
inquire about the discrepancy of the outstanding balance due to its belief that
it never received the proposed assessment. MSHA Assessments informed Robinson that
the proposed assessment had been delivered and signed for on May 22, 2023, at
10:01 AM by “C SMITH” in Ely, Nevada. The operator was also informed that this
case was delinquent and could not be contested. Robinson states in its motion
that it does not have any “C SMITH” employee, and that the proposed assessment
was not received by the mine. 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 Robinson’s request and the Secretary’s response, we find
that an inadvertent mistake occurred with an unknown person signing for the
assessment. 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/ 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Genevieve
Merrill

Coordinator,
Safety and Health Department

Robinson
Nevada Mining Company

4232
W. White Pine County Rd. 44

Ruth,
NV 89319

[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

Office
of the Chief AdministrativenLaw Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]