Secretary of Labor v. Wolf Run Mining, LLC (Commission decision, May 22, 2019)

Plain-English summary

Wolf Run Mining intended to contest citations after penalties were proposed, but internal miscommunication caused the penalties to be paid instead. The company discovered the error while responding to mine-management inquiries and immediately contacted outside counsel. Counsel moved to reopen less than three weeks after the assessment became final. The Secretary did not oppose the request but urged Wolf Run to improve its contest procedures. The Commission found a communication mistake, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened, and the case was remanded for further proceedings.
• Key point: A mistaken payment caused by internal miscommunication supported reopening when the operator acted promptly after discovery.

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.

WOLF
RUN MINING, LLC

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:

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Docket
No. WEVA 2018-622

A.C.
No. 46-04168-467185

BEFORE:  Rajkovich,
Chairman; Jordan, Young, Althen, and Traynor, 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 8, 2018, the Commission received from Wolf Run Mining, LLC (“Wolf Run”) 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 June 19, 2018, and became a final order of the Commission on July 19, 2018.

Wolf Run asserts that it held a
conference with an MSHA representative to discuss the citations before penalties had been proposed. Following this conference, Wolf Run told its outside counsel that it intended to contest the citations once penalties were proposed. However, Wolf Run asserts that internal miscommunication resulted in the penalties inadvertently being timely paid, rather than contested. On August 6, 2018, Wolf Run discovered its mistake while responding to inquiries from mine management and immediately contacted outside counsel, who filed a Motion to Reopen less than three weeks after the Proposed Penalty Assessment had become a final order of the Commission. 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 Wolf Run’s request and the Secretary’s response, we find that the operator’s failure to timely contest the assessment was the result of a communication mistake regarding whether management intended to contest or pay the penalties. 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/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

Distribution:

Michael
T. Cimino, Esq.

Jackson
Kelly PLLC

P.O.
Box 553

Charleston,
WV 25322-0553

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Acting
Chief Administrative Law Judge Margaret Miller

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