Secretary of Labor v. Signature Mining Services, LLC (Commission decision, July 31, 2013)

Plain-English summary

Signature Mining missed the 30-day penalty-contest deadline while its owner was outside the country for extended periods. A later MSHA delinquency notice was returned undelivered, and the owner learned of the debt through a collection call. Signature said it adopted new procedures to ensure timely communication. The Secretary did not oppose reopening but warned that a future request based on the same reason might be opposed. The Commission reopened the final assessment and remanded the matter for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final penalty assessment was reopened and the matter was remanded for proceedings on the merits.
• Key point: Reopening may be granted for excusable neglect, but an operator should correct the communication failure that caused the missed deadline.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 31, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

SIGNATURE MINING SERVICES, LLC

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Docket No.WEVA 2013-515

A.C. No. 46-09082-288737

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 February 7, 2013, the Commission received from Signature Mining Services, LLC (“Signature”) 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 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 May 16, 2012, and became a final order of the Commission on June 15, 2012. Signature asserts that its owner was out of the country from May 4 to June 3 and from June 11 to July 16, 2012. MSHA mailed a delinquency notice on July 31, which was returned undelivered. The case was referred to the Department of Treasury for collection on November 15, 2012. Signature’s owner states that he received a call from a collection company on January 16, 2013, and implemented new procedures to ensure timely communication in the future. The Secretary does not oppose the request to reopen, but cautions he may oppose future motions requested for this same reason.

Having reviewed Signature’s 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/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Erik L. Silkwood, Esq.

Hardy Pence, PLLC

500 Lee Street, Suite 701

East, P.O. Box 2548

Charleston, WV 25329

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