Secretary of Labor v. Eastern Associated Coal, LLC (Commission decision, May 18, 2015)

Plain-English summary

Eastern Associated Coal missed the deadline to contest an MSHA penalty assessment during a change in safety personnel. The safety manager responsible for reviewing citations and deciding which penalties to contest was on medical leave. A replacement manager had begun assuming those duties shortly before the assessment arrived, and the document was missed during the transition. The Secretary did not oppose reopening but urged the company to ensure that future assessments are handled on time. The Commission reopened the final assessment in the interest of justice and remanded the case for further proceedings, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A documented personnel transition during a responsible employee's medical leave may justify reopening a missed assessment contest.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. WEVA 2014-1950

v.                                              
 :        A.C. No. 46-09152-348595     

:                   

EASTERN
ASSOCIATED COAL, LLC        :

BEFORE:
Jordan, Chairman; Young, Nakamura, and Althen, Commissioners[1]

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 28, 2014, the Commission received from Eastern Associated Coal (“Eastern Associated”) 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 the proposed assessment was delivered on May 3, 2014, and became a final order of the Commission on June 2, 2014. Eastern Associated asserts that its failure to contest the proposed assessment was due to a personnel change at the office. The mine’s safety manager, who reviews the mine’s citations in order to determine which ones should be contested, was out on medical leave and a new safety manager was put in place in April 2014 to assume his responsibilities. According to the operator, the proposed assessment at issue was delivered during the transition. The Secretary does not oppose the request to reopen. However, he urges Eastern Associated to take all steps necessary to ensure that proposed assessments are timely contested in the future.

Having
reviewed Eastern Associated’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/ Margaret A.
Miller

Mary Lu Jordan, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] Commissioner
Cohen has elected not to participate in this matter.