Secretary of Labor v. Scott Carpenter

Plain-English summary

Scott Carpenter asked the Commission to reopen an individual section 110(c) penalty assessment that became final after no contest was filed. MSHA sent the assessment and delinquency notice to an address where Carpenter said he had not lived since 2010, even though he had requested that correspondence go to counsel. He learned of the debt after the Department of Treasury contacted him and then notified counsel. The Secretary did not oppose reopening. The Commission reopened the assessment in the interests of justice and remanded it for penalty proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.26, 2700.27, and 2700.28
• Outcome: The final individual penalty assessment was reopened and remanded.
• Key point: A section 110(c) assessment was reopened when official notices went to a former address despite an earlier request to direct correspondence to counsel.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 31, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

SCOTT CARPENTER 

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Docket No. WEVA 2013-25

A.C. No. 46-09136-281297 A

BEFORE: Jordan, Chairman; Young 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 October 3, 2012, the Commission received a motion
seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c),
that had become a final order of the Commission.

Under the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.

We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders. 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).

MSHA’s records indicate that the proposed assessment was delivered on February 23,
2012, signed for by J. Carpenter, and became a final order of the Commission on March 26,
2012. MSHA mailed a delinquency notice to the same address on May 9, 2012, and this case
was transferred to the Department of Treasury for collection on August 30, 2012. Mr. Carpenter
asserts that he no longer resided at that address since August 9, 2010, and that he requested that
all correspondence be directed to his counsel by letter dated October 11, 2010. Mr. Carpenter
further states that he received a letter from the Department of Treasury on September 22, 2012
and contacted counsel. The Secretary does not oppose the request to reopen.

Having reviewed this request and the Secretary’s response, in the interests 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.

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Mary Lu Jordan, Chairman

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Michael G. Young, Commissioner

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Patrick K. Nakamura, Commissioner

Distribution

Sarah Ghiz Korwan, Esq.

Preservati Law Offices, PLLC

P.O. Box 1431

Charleston, WV 25325

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