Secretary of Labor v. ARJ Construction Company, Inc. (Commission decision, May 18, 2015)

Plain-English summary

ARJ Construction missed the deadline to contest an MSHA penalty assessment because its counsel entered January 23 instead of January 15 in the office scheduling system. ARJ said the isolated entry mistake did not reflect unreliable procedures because the office had reliably scheduled hundreds of matters each month for years. The Secretary did not oppose reopening but urged the operator to ensure that future contests meet the 30-day deadline. The Commission reopened the final assessment in the interest of justice and remanded the case for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: An isolated deadline-entry error may support reopening when counsel otherwise maintains a long-standing, reliable scheduling system.

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 2014-83

v.                                              
 :        A.C. No. 18-00748-338452   

:                   

ARJ
CONSTRUCTION COMPANY, INC.   :

BEFORE:
Jordan, Chairman; Young, Nakamura, 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 February 17, 2014, the Commission received from ARJ Construction (“ARJ”) 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 16, 2013, and became a final order of the Commission on January 15, 2014. ARJ asserts that it failed to timely contest the proposed assessment because ARJ’s counsel inadvertently entered an incorrect deadline date of January 23, 2014, rather than January 15, 2014, into its scheduling system. ARJ further asserts that the error did not occur because of inadequate or unreliable office procedures, and that the office schedules hundreds of matters every month and has done so for years in a reliable manner. The Secretary does not oppose the request to reopen, however he urges the operator to take steps to ensure that future penalty contests are timely contested within 30 days of receipt.

Having
reviewed ARJ’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/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] Commissioner
Cohen has elected not to participate in this matter.