Secretary of Labor v. RMS Gravel, Inc. (Commission decision, March 5, 2018)

Plain-English summary

RMS Gravel did not contest a citation because it believed an MSHA inspector had said that a revised citation would be issued. No revision arrived, and the operator learned from counsel after a delinquency notice that the original citation and assessment had become final. The Secretary denied that the inspector promised a revision but did not oppose reopening. RMS said it was unfamiliar with special-investigation procedures, had filed no other reopening motions in the previous two years, and acted immediately after discovering the mistake. The Commission found that RMS mistakenly waited for a revision, reopened the assessment, and remanded the case for a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a) and Federal Rule of Civil Procedure 60(b)
• Outcome: The final penalty assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: A mistaken belief that MSHA would issue a revised citation supported reopening when the operator promptly acted after learning the original assessment was final.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)        

v.

RMS
GRAVEL, INC.

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Docket
No. YORK 2017-36-M

A.C.
No. 30-03883-416552

BEFORE:  Althen,
Acting Chairman; Jordan, Young, and Cohen, 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”). On November 29, 2016, the Commission received from RMS Gravel, Inc. (“RMS”) 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), 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 August 10, 2016, and became a final order of the Commission on September 9, 2016. RMS asserts that after the instant citation was issued, the MSHA inspector indicated he would be issuing a revised citation. The operator thus says it did not challenge the citation, even though it believed that it had a meritorious defense, because it was waiting for the revised citation.

No revised citation was issued, and MSHA
issued a delinquency notice on October 25, 2016. RMS did not realize that the citation and assessment were considered final until so advised by counsel following receipt of that notice. The operator also avers that it was unfamiliar with the procedure for MSHA special investigations. RMS has not filed any other motions to reopen with the Commission in the last two years and responded immediately upon discovering its mistake. The Secretary does not oppose the request to reopen, but denies that the MSHA inspector ever indicated that he intended to issue a revised citation.

Having
reviewed RMS’ request and the Secretary’s
response, we find that the operator mistakenly believed that the citation at issue would be revised and that it was not necessary to file a contest until that revision was made. 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/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Michael
A. Fogel

Brown,
Sharlow, Duke & Fogel, P.C.

621
West Genesee St.

Syracuse,
NY 13204

Julie
Reeves

RMS
Gravel, Inc.

P.O.
Box 455

Dryden,
NY 13053

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. 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 St. South, Suite 500

Arlington,
VA 22202-5450