Secretary of Labor v. KC Transport, Inc. (Commission decision, January 19, 2021)

Plain-English summary

KC Transport failed to contest two proposed penalty assessments because an administrative assistant believed she had sent them to company counsel but had not done so. The operator learned that the assessments were delinquent from counsel and described improvements to its internal processing system. The Secretary did not oppose reopening but urged the operator to ensure future contests are timely. The Commission found excusable neglect, reopened both assessments, and remanded the consolidated matters for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.12, 2700.28
• Outcome: Both final assessments were reopened and the consolidated matters were remanded.
• Key point: A documented internal routing mistake supported relief after the operator improved its assessment-processing procedures.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

January 19, 2021

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

KC
TRANSPORT, INC.

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Docket
No. WEVA 2019-0622

A.C.
No. 46-09357-481953

Docket
No. WEVA 2019-0623

A.C.
No. 46-01368-491694

BEFORE:  Rajkovich,
Chairman; Althen and Traynor, Commissioners

ORDER

BY THE
COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). On August 5, 2019, the Commission received from KC Transport, Inc. (“KC”) two motions seeking to reopen two penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

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 for WEVA 2019-0622 was delivered on January 29, 2019, and became a final order of the Commission on February 28, 2019. MSHA records also indicate that the proposed assessment for WEVA 2019-0623 was delivered on May 28, 2019, and became a final order of the Commission on June 27, 2019. The operator asserts that on July 11, 2019, the operator learned from counsel that both proposed assessments were delinquent. KC asserts that the administrative assistant working at the mine had thought she had sent the proposed assessments to their counsel, when in fact, she did not. The operator explains how it has since improved its processing and handling of proposed assessments to make sure this does not happen again. 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 KC’s request and the Secretary’s
response, we find that the operator acted with excusable neglect and has taken steps to improve its internal processing systems. 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/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III , Commissioner

Distribution (e-mail):

James
P. McHugh, Esq.,

Hardy
Pence, PLLC

10
Hale Street, 4 th Floor

P.O.
Box 2548

Charleston,
WV 25329-2548

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12 th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12 th 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

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12 th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

[1] For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket numbers WEVA 2019-0622 and WEVA 2019-0623 involving similar issues. 29 C.F.R. § 2700.12.