Secretary of Labor v. Emerald Processing, LLC

Plain-English summary

Emerald Processing missed the penalty-contest deadline by three days. The company explained that a warehouse technician who received the assessment departed from the established procedure and miscalculated the due date. The Secretary did not oppose reopening but urged the operator to handle future contests on time. The Commission reopened the 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 was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A short deadline error caused by an identified departure from an established handling procedure can support reopening when the Secretary does not object.

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 2014-2201

v.                                              
 :        A.C. No. 46-09258-355340 

:                   

EMERALD
PROCESSING, LLC                  :

BEFORE:
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 September 19, 2014, the Commission received
from Emerald
Processing, LLC., (“Emerald”) 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”) demonstrate
that the proposed assessment was delivered on July 9, 2014, and became a final
order of the Commission on August 8, 2014. Emerald asserts that it
missed the contest deadline by three days because it miscalculated when the
deadline was due. It contends that the miscalculation arose from an erroneous
departure from procedure by the warehouse technician who receives the proposed
assessments. The Secretary does not oppose the request to reopen. However,
he
urges Emerald
to
ensure that future penalty assessments are contested in a timely manner.

Having
reviewed Emerald’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/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen.  30 U.S.C. § 823(c).