Secretary of Labor, Mine Safety and Health Administration (MSHA) v. P.A. Landers, Inc. (Commission decision, October 20, 2016)

Plain-English summary

When MSHA proposes a penalty, the operator has 30 days under section 105(a) of the Mine Act to contest it. If that deadline passes, the assessment becomes a final order of the Commission on its own, and the operator has to ask the Commission to reopen the case before it can contest anything. P.A. Landers, Inc. filed such a motion here. The Secretary of Labor told the Commission he did not oppose it. The Commission granted the unopposed motion, reopened the matter, and sent it to the Chief Administrative Law Judge for normal proceedings. Under Commission Rule 28 the Secretary has 45 days from the order to file a petition proposing the penalty. The Commission added that granting this motion sets no precedent for any other reopening request, so operators in similar situations cannot point to this order as a reason their own late filing should be excused.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 813(a) as cited in the order, with Commission Rule 28 at 29 C.F.R. § 2700.28
• Outcome: Motion to reopen granted and the case remanded to the Chief Administrative Law Judge, with a penalty petition due from the Secretary within 45 days.
• Key point: An unopposed motion to reopen a final penalty assessment is routinely granted, but the Commission states expressly that doing so is not precedent for any other motion.

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 2015-123-M

v.                                                
:      A.C. No. 19-00598-381455         

:                            

P.A.
LANDERS, INC.                                       :

BEFORE:   
Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”).  The Commission has received a motion from the operator seeking to reopen a penalty assessment which had become a final order of the Commission pursuant to section 105(a) of the Mine Act,  30 U.S.C. § 813(a).  The Secretary states that he does not oppose the motion.

Having
reviewed movant’s unopposed motion to reopen, we 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. 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.

The
granting of this motion is not precedential for the consideration of any other motion before the Commission.

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/ Michael G.
Young

Michael G.
Young, Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

Distribution:

Patrick
W. Dennison, Esq.

Jackson
Kelly, PLLC

401
Liberty Avenue

Pittsburgh,
PA 15222-1000

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5450