Double Bonus Coal Company

Plain-English summary

Double Bonus Coal sought to reopen two penalty assessments, first claiming it had not received them because MSHA used certified mail rather than Federal Express. The record showed that both assessments were delivered to the operator's legal address and signed for. Double Bonus then acknowledged receipt but argued that the unexpected delivery method confused personnel and that the mail may have been treated as junk. The Commission held that its rules expressly allow certified-mail service and that an unreliable internal mail system does not establish good cause. It denied both reopening motions with prejudice.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.25
• Outcome: Both reopening motions were denied with prejudice.
• Key point: An operator cannot obtain reopening when an employee signed for properly served assessments and internal handling caused them to be overlooked.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 15, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DOUBLE BONUS COAL COMPANY

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Docket No. WEVA 2009-1759

A.C. No. 46-09020-180693

Docket No. WEVA 2009-1761

A.C. No. 46-09020-183777

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On August 4, 2009, the Commission received motions
seeking to reopen two penalty assessments issued to Double Bonus Coal Company (“Double
Bonus”) that had become final orders 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 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).

On March 31, 2009, and April 28, 2009, the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) issued two proposed penalty assessments to Double Bonus.
Double Bonus asserts that it first learned of these penalty assessments when representative,
James Bowman was reviewing data on MSHA’s data retrieval system. It claims that MSHA
failed to properly serve the proposed assessments because MSHA sent the assessments by U.S.
certified mail rather than by Federal Express.

The Secretary opposes reopening and maintains that the proposed penalty assessments
were properly delivered via U.S. certified mail to the operator’s legal address of record and were,
in fact, received and signed for by the operator. She asserts that the operator in its reopening
request in Double Bonus Coal Co., 31 FMSHRC 358 (Mar. 2009), stated that it had difficulties
in receiving deliveries at the address at Route 12/3 Pinnacle Creek Road. Because of those
difficulties, the Secretary asserts that she used the legal ID address of record.

Double Bonus then filed an answer to the Secretary’s opposition, in which it
acknowledged that it received the penalty assessments but claimed that it was expecting penalty
assessments to be delivered by Federal Express as a result of a prior MSHA instruction and that
delivery by U.S. Mail caused confusion among its personnel. It further claimed that the certified
mail may have been overlooked as junk mail.

The Secretary filed a reply, contending that the operator’s claim was specious in light of
the fact that it “undisputedly received the proposed penalty assessment.” S. Reply at 1.

Having reviewed Double Bonus’ requests and the Secretary’s responses, we deny the
motions with prejudice. The record reveals that Double Bonus unquestionably received and
signed for the proposed assessments. We note that the Commission Procedural Rules expressly
authorize the Secretary to utilize certified mail when notifying operators of proposed penalty
assessments. 29 C.F.R. § 2700.25. Moreover, we are not persuaded by the operator’s proffered
reasons for failing to timely respond to the penalty assessments, i.e., that the certified mail
delivery caused confusion and that the operator may have treated its certified mail, the receipt of
which was acknowledged by one of its employees, as casually as junk mail. We have held that
an inadequate or unreliable system for delivering internal mail does not constitute inadvertence,
mistake, or excusable neglect so as to justify reopening of an assessment that has become final
under section 105(c) of the Mine Act. Pinnacle Mining Co., 30 FMSHRC 1061 (Dec. 2008);
Pinnacle Mining Co., 30 FMSHRC 1066 (Dec. 2008).

Accordingly, we conclude that Double Bonus has failed to establish good cause for
reopening the proposed penalty assessments and deny its motions with prejudice. See Highland
Mining Co., 31 FMSHRC 1313, 1314-15 (Nov. 2009) (denying motion to reopen with prejudice
when the operator’s security guard signed for the proposed penalty assessment and operator
claimed to have never seen it again). 

Mary Lu Jordan, Commissioner

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

James F. Bowman

Double Bonus Coal Co.

P.O. Box 99

Midway, WV 25878

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