Secretary of Labor v. Kanawha Eagle Mining, LLC

Plain-English summary

Kanawha Eagle's safety director timely mailed a penalty-contest form but checked the box for a single $123 citation instead of the adjacent box contesting all $17,385 in penalties. The remaining assessments therefore became a final Commission order, and MSHA later issued a delinquency notice. The safety director submitted an attestation explaining the checkbox error. The Secretary did not oppose reopening. The Commission found that the operator failed to contest all penalties because of a mistake, reopened the assessment, and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: A timely contest form with a documented adjacent-checkbox error supported reopening the unmarked penalties.

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.

KANAWHA
EAGLE MINING, LLC

:

:

:

:

:

:

:

Docket
No. WEVA 2020-0476

A.C.
No. 46-03085-510824

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 July 20, 2020, Kanawha Eagle Mining, LLC,
filed a motion 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).

The
Secretary of Labor states that the records of the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) indicate that a proposed assessment
was sent to the operator on March 17, 2020, and was delivered on April 15, 2020,
via U.S. Postal Service Mail. The Secretary asserts that the proposed
assessment became a final order of the Commission on May 15, 2020, 30 days
after its delivery. The Secretary sent the operator a delinquency notice on
June 30, 2020.

Kanawha
Eagle asserts that it failed to timely contest the penalties at issue due to a
mistake. Specifically, its safety director attests that he mistakenly checked a
box to contest one citation ($123 penalty) on the assessment; he instead
intended to check the box located just below which would have indicated the
operator’s intent to contest all the penalties at issue ($17,385). The safety director
maintains that he timely mailed the notice of contest on April 17, 2020. The
Secretary does not oppose the operator’s request to reopen.   

Having
reviewed Kanawha Eagle’s request and the
Secretary’s response, we find that the operator failed to timely contest
all the penalties at issue due to a mistake. We 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:

Emily Toler-Scott,
Esq.

Office of the Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Ave. N.W., Suite 520N

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Jonathan R. Ellis,
Esq.

Colton C. Parsons,
Esq.

707 Virginia
Street, East, Seventeenth Floor

P.O. Box 1588

Charleston, WV 25326

[email protected]

[email protected]