Secretary of Labor v. Justin Hershman, formerly employed by Consolidation Coal Company

Plain-English summary

MSHA proposed an individual penalty against former Consolidation Coal employee Justin Hershman under section 110(c) of the Mine Act. Hershman asked to reopen after learning that MSHA had mailed the assessment to the wrong address. The Secretary confirmed the addressing error and reported that Hershman timely contested the assessment after it was sent to the correct address. The Commission held that the assessment never became a final order because Hershman had not received it. It denied the reopening motion as moot and remanded the active case for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(c); 29 C.F.R. §§ 2700.26 and 2700.27
• Outcome: The reopening motion was denied as moot, and the case was remanded because the assessment had never become final.
• Key point: An individual penalty mailed to the wrong address does not become final when the recipient timely contests it after correct delivery.

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 2014-1997

v.                                              
 :        A.C. No. 46-01433-336289
A   

:                   

JUSTIN
HERSHMAN,                                     :

formerly
employed by                                       :

CONSOLIDATION
COAL                            :

COMPANY                                      
              :                                   

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 August 4, 2014, the Commission received from Justin
Hershman (“Hershman”) a motion seeking to reopen a penalty assessment under
section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had appeared to 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.         

Hershman asserts
that it never received the proposed penalty assessment because the Secretary
mailed it to the wrong address. The Secretary confirms this, and states that
once MSHA re-mailed the proposed assessment to the correct address, it was
timely contested by Hershman.

Having reviewed Hershman’s request and the Secretary’s response, we conclude that
the proposed penalty assessment did not become a final order of the
Commission because the operator never received the proposed assessment. This
obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure
in order to consider reopening a final order.

Accordingly,
the operator’s motion to reopen is moot, and this case is remanded 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.

/s/ Mary Lu
Jordan

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.