Secretary of Labor v. Lo Down Energy, Inc.

Plain-English summary

Lo Down Energy, Inc. did not contest a proposed penalty within 30 days, so the assessment became a final Commission order. The employee responsible for penalty contests was out sick when the assessment arrived and later left the job because of the illness. Lo Down said the staffing disruption interrupted normal mine-office operations and caused the missed contest. It hired and trained a new office manager to prevent the problem from recurring, and the Secretary did not oppose reopening. The Commission found excusable neglect based on the office manager's illness, reopened the assessment, and remanded the case for penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and the matter was remanded for further proceedings.
• Key point: Illness and departure of the employee responsible for penalty contests supported reopening when the operator trained a replacement to prevent recurrence.

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.

LO DOWN ENERGY, INC.

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Docket
No. WEVA 2020-0261

A.C.
No. 46-08659-505390

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 February 19, 2020, the Commission received
from Lo Down Energy, Inc. (“Lo Down”) 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 27, 2019, and
became a final order of the Commission on January 27, 2020.  Lo Down asserts
that the individual responsible for contesting penalty assessments was out sick
at the time the penalty assessment was received and had to quit the job due to
the illness. This caused a disruption in the regular day-to-day operations at
the mine and is the reason for the failure to contest the proposed assessment in
a timely manner, according to the operator.  The operator asserts that it has
since hired a new office manager with specific training and instructions to prevent
any future failures to timely contest proposed assessments.  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 Lo Down’s request and the
Secretary’s response, we find that Lo Down acted with excusable neglect because
its office manager’s illness was the reason for its failure to contest the
proposed assessment in a timely manner.  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
F. Bowman

Bowman
Industries

PO
BOX 99

150
Ballard Street

Midway,
WV  25878

[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]

Emily
Toler Scott, 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

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

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]