Secretary of Labor v. Tilcon New York, Inc. (Commission decision, May 31, 2013)

Plain-English summary

Tilcon New York mailed a timely contest notice and payment for uncontested citations to MSHA's St. Louis office instead of the Civil Penalty Compliance Office in Arlington. The assessment became final, and Tilcon discovered the routing error after receiving a delinquency notice. It contacted MSHA about two weeks later. The Secretary did not oppose reopening and confirmed that MSHA had received payment for the uncontested penalties. The Commission reopened the assessment in the interests of justice and remanded it for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: A timely contest mistakenly sent to the wrong MSHA office supported reopening when the operator acted after receiving a delinquency notice and the Secretary did not oppose relief.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

May 31, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

TILCON NEW YORK, INC. 

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Docket No. YORK 2013-1-M

A.C. No. 30-00083-291556

BEFORE: Jordan, Chairman;
Young and Nakamura, 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. (2006) (“Mine Act”). On October 2, 2012, the Commission received from Tilcon New York, Inc. (“Tilcon”) 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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).

Tilcon
asserts that it mailed a timely notice of contest with payment for the uncontested citations to St. Louis, Missouri, instead of Arlington, Virginia. Tilcon discovered the error after receiving a delinquency notice, dated August 27, 2012, indicating that the proposed assessment became a final order on July 12, 2012. Tilcon contacted MSHA on September 10, 2012. The Secretary does not oppose the request to reopen, and notes that MSHA received payment for the uncontested penalties, by check dated June 25, 2012. The Secretary urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed Tilcon’s request and the
Secretary’s response, in the interests 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.

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Mary Lu Jordan, Chairman

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Michael G. Young, Commissioner

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Patrick K. Nakamura, Commissioner

Distribution

Sarah T. Brooks, Esq.

Oldcastle Materials Law Group

900 Ashwood Parkway, Suite 700

Atlanta, GA 30338-4780

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710