Secretary of Labor v. Pay Car Mining, Inc. (Commission decision, May 23, 2013)

Plain-English summary

Pay Car Mining's representative placed two proposed assessments in his secretary's work box for contest. Unforeseen medical developments prevented the secretary from filing before the assessments became final. The Secretary did not oppose reopening but urged the representative to adopt procedures that would keep personal disruptions from causing future defaults. The Secretary also reported that Pay Car owed about $91,946 in delinquent penalties. The Commission reopened both matters and remanded them for penalty proceedings. A later corrected order identified Dynamic Energy as the operator in the second docket.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: Both final assessments were reopened and remanded, and the caption was later corrected in weva-2012-1435-commission.
• Key point: Unforeseen medical developments supported reopening, but the Commission emphasized the need for filing procedures that remain reliable during personal disruptions.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

May 23, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

PAY CAR MINING,
INC. 
:
:
:
:
:
:
:

Docket No. WEVA 2012-1435
A.C.
No. 46-08884-286693

Docket No. WEVA 2012-1436
A.C. No.
46-09062-286698

BEFORE: Jordan, Chairman;
Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On July 6, 2012, the Commission received from Pay Car Mining, Inc. (“Pay Car”) two motions seeking to reopen two penalty assessments 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 mistake, inadvertence, or excusable neglect. 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).

Pay
Car’s representative asserts that he received the proposed assessments on April 24, 2012, and placed them in his secretary’s work box for contest. Due to unforeseen medical developments, the secretary did not contest the assessments until June 6, 2012. However, the proposed assessment had become a final order on May 24, 2012. The Secretary does not oppose the requests to reopen, but urges the representative to establish procedures to ensure that personal developments do not prevent timely filing of future penalty contests. The Secretary also notes that Pay Car is currently delinquent in the payment of approximately $91,946.

Having
reviewed Pay Car’s requests and the
Secretary’s responses, in the interests of justice, we hereby reopen these matters and remand them 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, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

James F. Bowman, Representative

Pay Car Mining, Inc.

P.O. Box 99,

Midway, WV 25878

[email protected]

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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

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

Washington, D.C.
20004-1710