Secretary of Labor v. Brooks Run Mining Company, LLC (Commission decision, October 21, 2014)

Plain-English summary

Brooks Run filed a pre-penalty contest of Citation No. 6617100 but later mistakenly paid the proposed assessment instead of contesting it again at the penalty stage. Counsel discovered the error after the assessment had become a final Commission order. The Secretary did not oppose reopening and urged the operator to improve its filing procedures. The Commission reopened the assessment in the interest of justice and remanded it for merits proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The mistakenly paid final assessment was reopened and remanded for further proceedings.
• Key point: A pre-penalty contest does not replace the later assessment contest, but mistaken payment may support reopening when promptly discovered and unopposed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

BROOKS RUN MINING COMPANY,

LLC

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Docket No.

A.C. No.

WEVA 2013-1122

46-09353-318248-02

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On July 23, 2013, the Commission received from Brooks Run Mining Company, LLC (“Brooks”) 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 a pre-penalty contest was filed for Citation No. 6617100. However, the proposed assessment was not contested and was in fact paid by check dated May 14, 2013. Brooks asserts that it mistakenly paid the penalty and its counsel discovered the error on July 3, 2013. The Secretary does not oppose the request to reopen, and urges the operator to adopt procedures to ensure that future penalty contests are timely filed.

Having reviewed
Brooks’ request and the Secretary’s response, 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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner