Secretary of Labor v. Byrne Sand & Gravel Co., Inc.

Plain-English summary

Byrne Sand & Gravel did not contest a proposed penalty assessment within 30 days, so the assessment became a final Commission order. The company explained that its treasurer believed the general manager would file the contest, while the general manager believed the treasurer would handle it. The Secretary did not oppose reopening but urged Byrne to submit future contests on time. The Commission reopened the assessment in the interest of justice, remanded it for further proceedings, and ordered the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.1(b), 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A missed deadline caused by clearly identified crossed responsibilities between two company officers supported reopening when the Secretary did not object.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                               :                                       

MINE SAFETY AND HEALTH                    :                                                       

ADMINISTRATION
(MSHA)                        :     

:

:      Docket No. YORK 2014-192-M

v.                                                 
:      A.C. No. 19-00689-352593        

:                             

BYRNE
SAND & GRAVEL CO, INC.            :

BEFORE:
 Jordan, Chairman; Young and Althen, Commissioners[1]

ORDER

BY THE
COMMISSION:

This matter
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.        §
801 et seq. (2012) (“Mine Act”).  On September 9, 2014, the Commission received
from Byrne
Sand & Gravel Company, Inc. (“Byrne”) 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”) demonstrate
that the proposed assessment was delivered on June 11, 2014, and became a final
order of the Commission on July 11, 2014.  The operator asserts that
there was confusion due to the fact that the treasurer had thought that the
general manager was going to contest the proposed assessment, while the general
manager had thought the treasurer was going to handle it.  The Secretary does
not oppose the request to reopen.  However, he urges Byrne
to
ensure that future penalty assessments are contested in a timely manner.

Having
reviewed Byrne’s request
and the Secretary’s response, 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/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen.   30 U.S.C. § 823(c).