Secretary of Labor v. Thomas L. Puckett, employed by Frasure Creek Mining, LLC (Commission decision, August 30, 2018)

Plain-English summary

Thomas Puckett timely contested an individual civil penalty assessment in 2015, but MSHA did not file the required penalty petition. A show-cause order went unanswered, so the Chief Administrative Law Judge dismissed the case for the Secretary's failure to prosecute. MSHA later incorrectly recorded the matter as a default and sent Puckett a delinquency letter claiming he owed more than $8,000. The Commission clarified that Puckett had not defaulted, the proposed assessment never became a final order, and he owed the government nothing. Because the case was already dismissed, reopening was unnecessary.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(c)
• Outcome: The Commission held that the assessment never became final, Puckett owed nothing, and reopening was unnecessary.
• Key point: A timely contestant does not owe a proposed penalty when the Secretary fails to prosecute and the proceeding is dismissed.

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.

THOMAS
L. PUCKETT, employed by

FRASURE
CREEK MINING, LLC

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Docket
No. WEVA 2015-932

A.C.
No. 46-09105-387887A

BEFORE:  Althen,
Acting Chairman; Jordan, Young, and Cohen, 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 March 26, 2018, the Commission received a motion seeking to reopen this civil penalty case involving Thomas Puckett under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). Puckett is concerned because, although he timely contested a proposed assessment sent to him by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) in 2015, and although the proposed assessment was not further processed by MSHA, he received a letter from MSHA dated March 9, 2018 informing him that the civil penalty had become delinquent and he owed the government over $8000.

MSHA
records indicate that the proposed assessment was delivered on July 28, 2015, and contested by Puckett on or about August 10, 2015.

On November 21, 2017, the Chief
Administrative Law Judge issued an Order requiring the Secretary to show cause as to why a petition for assessment of penalty had not been filed within 45 days of Puckett’s timely contest, as required by the Commission’s Procedural Rules. The Secretary failed to timely file a penalty petition or to otherwise respond to the Show Cause Order. Accordingly, pursuant to the terms of the Order, the proceeding against Puckett was dismissed on December 22, 2017. See 29 C.F.R. §§ 2700.28(a), 2700.66(a).

In his motion, Puckett asserts that the
proposed assessment was timely contested in August 2015. He further states he did not receive any further documents from MSHA until March 2018, when the Secretary issued a letter stating that the assessment had become a final order and that he was delinquent in paying the assessed penalty.

The Secretary does not oppose the motion
to reopen. According to the Secretary, MSHA’s records indicate that the case was “in contest” on August 10, 2015, but was “closed by default on January 3, 2018.” The Secretary contends that the assessment became a final order on February 1, 2018. Presumably relying on these records, the Secretary mailed a delinquency notice to Puckett on March 9, 2018.

MSHA’s records and the Secretary’s
response to the motion before us do not accurately describe the status of this case. The Chief Administrative Law Judge dismissed this matter because of the Secretary’s failure to file a civil penalty petition. There was no failure to act by Puckett. Accordingly, the Secretary’s proposed penalty assessment did not become a final order.

Because this matter was dismissed as a
result of the Secretary’s failure to prosecute, Puckett does not owe anything to the government. Accordingly, reopening this matter is unnecessary.

/s/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

James
F. Bowman

P.O.
Box 99

Midway,
WV 25878

Thomas
L. Puckett

301
Riffe St.

Sophia,
WV 25921

Frasure
Creek Mining LLC

137
E. Main St.

Oak
Hill, WV 25901

Ali
Beydoun, 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