Bandmill Coal Corporation (Commission decision, April 4, 2008)

Plain-English summary

MSHA proposed penalties for one citation and three orders issued to Bandmill Coal Corporation. Bandmill's safety director intended to send the assessment to the company's counsel but mistakenly included it with two assessments for an affiliate that went to different counsel. The affiliate's counsel assumed Bandmill's counsel had also received the document, but it had not, and the Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to determine whether good cause existed and whether relief from the final order should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The assessment was remanded for a determination of good cause and entitlement to relief.
• Key point: A penalty assessment misdirected to an affiliate's lawyer requires factual review before default relief can be granted.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

April 4, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

BANDMILL COAL CORPORATION

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Docket No. WEVA 2008-288

A.C. No. 46-05086-124355

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On December 7, 2007, the Commission received from Bandmill Coal Corporation (“Bandmill”) a motion made by counsel 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).

On August 8, 2007, the Department of Labor’s Mine Safety and Health Administration issued Proposed Assessment No. 000124355 to Bandmill, proposing penalties for a citation and three orders that previously had been issued to the company. Bandmill’s safety director states that he meant to forward the assessment to Bandmill’s outside counsel handling the pending contests of the three orders so that the penalties for the three orders could also be contested. He further states that instead he mistakenly included the assessment with two other assessments issued to an affiliated company which he had telecopied to different outside counsel representing the affiliate. Outside counsel for the affiliate states that he assumed that counsel for Bandmill also received the forwarded assessment meant for that firm, but the firm did not. The Secretary states that she does not oppose Bandmill’s request to reopen the proposed penalty assessment.

We have held 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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).

Having reviewed Bandmill’s motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Bandmill’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution:

Jason M. Nutzman., Esq.

Dinsmore & Shohl, LLP,

P.O. Box 11887,

900 Lee Street,

Suite 600,

Charleston, WV 25339

W. Christian Schumann, Esq.,

Office of the Solicitor,

U.S. Department of Labor,

1100 Wilson Blvd., Room 2220,

Arlington, VA 22209-2296

Myra James,

Chief,

Office of Civil Penalty Compliance,

MSHA,

U.S. Dept. Of Labor,

1100 Wilson Blvd., 25th Floor,

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021