Secretary of Labor v. David Vukmanic, formerly employed by Consolidation Coal Company (Commission decision, May 18, 2015)

Plain-English summary

MSHA proposed an individual penalty against former Consolidation Coal employee David Vukmanic under section 110(c) of the Mine Act. Vukmanic asked to reopen after learning that MSHA had mailed the assessment to the wrong address. The Secretary confirmed the addressing error and reported that Vukmanic timely contested the assessment after it was re-mailed correctly. The Commission held that the assessment never became a final order because Vukmanic 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: A proposed individual penalty sent to the wrong address does not become a final order when the recipient timely contests it after proper 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 2014-1998

v.                                              
 :        A.C. No. 46-01433-336288
A   

:                   

DAVID
VUKMANIC, 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 David Vukmanic (“Vukmanic”) 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.

Vukmanic 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 Vukmanic.

Having reviewed Vukmanic’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.