Secretary of Labor v. Mingo Logan Coal, LLC

Plain-English summary

Mingo Logan Coal's assistant safety manager timely completed a form identifying ten citations for contest. A clerical error left the completed form unmailed, and an internal audit found the mistake about six weeks after the assessment became final. The company then contacted counsel to seek reopening. The Secretary did not oppose the request. The Commission found an unintentional mistake, reopened the assessment, and remanded it with a penalty petition due within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: A documented clerical failure to mail an otherwise timely prepared contest form supported reopening.

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.

MINGO
LOGAN COAL, LLC

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Docket
No. WEVA 2019-0320

A.C.
No. 46-09029-478458

BEFORE:  Traynor,
Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On March 18, 2019, the Commission received
from Mingo Logan Coal, LLC 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 a proposed assessment was delivered on December 3, 2018, and became
a final order on January 2, 2019. Mingo Logan asserts that there is good cause
to reopen this matter. The mine’s assistant safety manager timely prepared the
proposed assessment form, marking ten specific citations for contest. [1]
However, due to an inadvertent clerical error the completed form was not
mailed. An internal audit on February 18, 2019 revealed the mistake. After
learning of the issue, the manager contacted counsel to file a motion to reopen
the proceeding. [2]

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 Mingo Logan’s request and the
Secretary’s response, we find that Mingo Logan demonstrated that its failure
to timely file contest was the result of an unintentional mistake. We find good cause, hereby reopen this matter, and
remand the case 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Kelby Thomas Gray,
Esq.

Dinsmore &
Shohl LLP

707 Virginia
Street East, Suite 1300

Charleston, WV 25301

[email protected]

John M. McCracken,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Archith Ramkumar,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th Street
South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the
Solicitor

U.S. Department of
Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Melanie Garris

U.S. Department of
Labor

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Chief Administrative
Law Judge Glenn Voisin

Federal Mine Safety
& Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

[1]
Citation
Nos. 9175236, 9178580, 9178758, 9178759, 9178584, 9178585, 9178588, 9178589,
9175246, and 9178596.

[2]
Mingo
Logan’s motion was accompanied by supporting affidivats signed by the employees
involved.