Secretary of Labor v. Raw Coal Mining Co., Inc.

Plain-English summary

Raw Coal Mining sought to reopen two penalty assessments after its representative learned that contests mailed together by regular mail had not been recorded. The representative discovered the problem through a routine database search and filed the motions one week after the assessments became final orders. The Secretary did not oppose reopening but described the representative's office procedures as inadequate. The Commission found good cause based on the prompt, documented response, the representative's candor, the operator's payment of uncontested penalties, and the Secretary's non-opposition. It reopened the matters and remanded them for further proceedings, while warning that similar carelessness could cause future motions to be denied.

Decision snapshot

• Cited authority: None
• Outcome: Two final penalty assessments were reopened and remanded for further proceedings.
• Key point: Prompt action, documentation, candor, and demonstrated good faith supported relief from missed contest deadlines.

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.

RAW COAL MINING CO., INC.

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Docket No. WEVA 2020-0162

A.C. No. 46-0957-503864

Docket No. WEVA 2020-0163

A.C. No. 46-06265-503849

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 December 26, 2019, the Commission received from Raw
Coal Mining Co., Inc., (“Raw Coal”) two motions seeking to reopen 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 was delivered on November 18, 2019, and became a
final order of the Commission on December 19, 2019. The motions say that the contests
of the proposed assessments in these matters were both prepared and mailed by
regular mail in the same envelope on November 21, 2019. The representative says
in his motion that he discovered that neither case had been recorded as
“contested” during a routine search of MSHA’s database, and he filed the
instant motions to re-open on Dec. 26 – one week after both of these
assessments had become final orders of the Commission. [2]

The Secretary does
not oppose the requests to reopen, but he rightly characterizes the
representative’s office procedures as “inadequate,” and urges the operator to
take steps to ensure that future penalty contests are timely filed.

Having reviewed Raw Coal’s requests and the Secretary’s responses, we
find that the operator has moved promptly for relief. The motion is
well-documented and has candidly explains the failure to timely contest the
citations at issue. The representative is appropriately contrite in admitting
his error. In light of the pro-active discovery of the error, the swift action
once the default was noted, the operator’s demonstrated good faith in paying
the uncontested penalties promptly, and the Secretary’s non-opposition, we find
that the motion has demonstrated good cause for reopening. However, the operator should heed the Secretary’s
admonition against the carelessness reflected in this case [3] and take seriously its
responsibilities under the Act, or future motions relying on a similar excuse
may be denied.

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 (by e-mail):

James F. Bowman

Representative

Raw Coal Mining Co., Inc.

[email protected]

Emily Toler Scott , Esq.

Office of the Solicitor

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health
Administration

[email protected]

[1] The two motions
addressed in this order rely upon the same rationale and common facts as a
basis for re-opening. For the limited purpose of addressing these motions to
reopen, we hereby consolidate these dockets, which involve similar procedural
issues. 29 C.F.R. §2700.12.

[2] In support of his motion, the representative also
notes that the operator paid part of the penalties due in WEVA-2020-0163. MSHA’s
records reflect that this payment of $1351 was received on November 21, within
the 30-day contest period.

[3] The operator’s representative said he decided not to
use certified mail “due to the low penalties in the two contested cases.” Leaving
aside the fact that a client’s legal matters, once entrusted to a party’s
representative, are all important and deserving of professional
management, the penalties in these two dockets totaled more than $7,000.