Secretary of Labor v. O & G Industries, Inc.

Plain-English summary

O & G Industries intended to contest part of a proposed penalty assessment but mailed the contest form with its partial payment to MSHA's payment office. Because that office was not the designated contest address, the assessment became a final Commission order. The Secretary did not oppose reopening but urged the operator to use the correct address and meet future deadlines. The Commission reopened the assessment in the interest of justice and remanded it for further proceedings.

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 contest mistakenly enclosed with a partial payment can support reopening, but operators must send future contest forms to the designated address.

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 2015-89-M         

v.                                              
 :        A.C. No. 06-00017-372166

:                   

O
& G INDUSTRIES, INC.                             :

BEFORE:
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 April 29, 2015, the Commission received from O
& G Industries, Inc. (“O
& G”)
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 January 15, 2015, and became a
final order of the Commission on February 17, 2015. MSHA sent a delinquency
notice on April 6, 2015. The operator asserts that it inadvertently
mailed the contest form along with a partial payment to MSHA’s payment office
in St. Louis, MO. The Secretary does not oppose the request to reopen. However,
he notes
that the address for the St. Louis payment office is the incorrect address for
submitting contest forms. The Secretary urges O & G to ensure that contests
to future penalty assessments are mailed to the appropriate address in a timely
manner.

Having
reviewed O & G’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/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, 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).