Secretary of Labor v. Consolidation Coal Company (Commission decision, December 23, 2014)

Plain-English summary

Consolidation Coal failed to contest a proposed penalty within 30 days after a change in ownership led to miscommunication about responsibility for filing contest forms. The assessment therefore became a final Commission order. Consolidation sought reopening, and the Secretary did not oppose relief but urged the operator to prevent future late contests. Guided by the rule allowing relief for mistake, inadvertence, or excusable neglect, the Commission unanimously reopened the assessment in the interest of justice and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: Miscommunication during an ownership-driven change in contest procedures can constitute good cause to reopen an uncontested assessment when relief is promptly sought and unopposed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

CONSOLIDATION COAL COMPANY

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Docket No.

A.C. No.

WEVA 2014-786

46-01968-338993

BEFORE: Nakamura, Acting Chairman; Cohen 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 April 8, 2014, the Commission received from Consolidation Coal Company (“Consolidation”) 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 January 1, 2014, and became a final order of the Commission on January 31, 2014. Consolidation asserts that the proposed assessment was not timely contested due to miscommunication resulting from a change in contest procedures, arising from a change in ownership. The Secretary does not oppose the request to reopen, and urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed
Consolidation’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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner