Secretary of Labor v. Marfork Coal Company

Plain-English summary

Marfork Coal missed a penalty-contest deadline after a delivery delay caused staff to record the assessment as received two days later than its actual delivery date. The company mailed its contest by the incorrectly calculated deadline, learned of the delinquency the next month, and moved to reopen within 30 days. The Secretary did not oppose reopening. The Commission found an inadvertent administrative error, reopened the final assessment, remanded the matter, and urged Marfork to improve its receipt-date and calendaring procedures.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: A documented two-day receipt-date error supported reopening, but the operator was directed to improve its mail and calendaring controls.

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.

MARFORK
COAL COMPANY

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Docket
No. WEVA 2019-0321

A.C.
No. 46-09048-479245

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. (2012) (“Mine Act”). On March 15, 2019, the Commission received
from Marfork Coal Company (“Marfork”) 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 December 10, 2018, and
became a final order of the Commission on January 9, 2019. Marfork asserts that
the proposed assessment was received at the operator’s mailing address on
December 10; however, the delivery driver who received it was unable to deliver
the document to the mine’s operational address until two days later. As a
result, the assessment was incorrectly stamped as received on December 12,
2018, with a response deadline of January 11, 2019. Marfork mailed the notice
of contest on January 11, two days after the assessment became final. Marfork
learned that the delinquency in late February 2019, and filed a motion to
reopen within 30 days.

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. Marfork states that it will endeavor to
ensure that the date entered in its processing system reflects the actual date
of receipt, and will remind all personnel handling contests, including mail
delivery handlers, of the importance of proper mail-handling and calendaring.

Having
reviewed Marfork’s request and the Secretary’s
response, we find that the delay in this instance was the result of an
inadvertent administrative error. To prevent such a mistake from recurring,
however, we urge the operator to enact procedures to ensure the correct date of
receipt is entered into the calendaring system going forward. 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/ 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:

James
P. McHugh, Esq.

Hardy
Pence, PLLC,

10
Hale Street, 4th Floor

PO
Box 2548

Charleston,
WV 25329-2548

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

Division
of Mine Safety and Health

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]