Secretary of Labor v. Brody Mining, LLC (Commission decision, December 18, 2015)

Plain-English summary

Brody Mining failed to timely contest the proposed penalty for an order after identifying a discrepancy between the assessment and the order. The company had already filed a timely pre-penalty notice contesting the same order and had moved to consolidate and expedite it, showing a clear intent to litigate. The Secretary did not oppose reopening but urged the company to handle future penalty contests on time. The Commission reopened the final assessment in the interest of justice and remanded it for further proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment for Order No. 7166788 was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A timely pre-penalty contest can demonstrate intent to challenge an order when a later assessment deadline is missed because of a document discrepancy.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),       

v.

BRODY
MINING, LLC,

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:

:

:

:

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Docket
No. WEVA 2014-2005

A.C.
No. 46-09086-350238

BEFORE:  Jordan,
Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On August 11, 2014, the Commission received from Brody Mining, LLC (“Brody”) a motion seeking to reopen Order No. 7166788 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).

The
Mine Safety and Health Administration’s (“MSHA”) Mine Data Retrieval System indicates that the proposed assessment became a final order of the Commission on June 11, 2014, and thus, it can be reasonably inferred that the proposed assessment was delivered to Brody on May 12, 2014. Brody asserts that it intended to contest the penalty but failed to do so due to a discrepancy between the proposed assessment and the order. Brody points to the fact that it timely filed a pre-penalty Notice of Contest of Order No. 7166788 and a Motion to Consolidate and Expedite Order No. 7166788 on October 30, 2013. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed Brody’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, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Michael
T. Cimino, Esq.

Jackson
Kelly, PLC

1600
Laidley Tower

P.O.
Box 553

Charleston,
WV 25322

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450