Secretary of Labor v. Dragon Products Company, LLC (Commission decision, April 17, 2023)

Plain-English summary

Dragon Products said it never received MSHA's proposed penalty assessment. The Secretary agreed that the assessment had been returned to MSHA rather than delivered to the operator. The Commission held that Dragon never had an opportunity to contest, so the assessment did not become a final order and Rule 60(b) reopening was unnecessary. It declared the reopening motion moot and treated the motion as Dragon's contest of the penalties. The Secretary was directed to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was moot because the assessment never became final, and the motion was treated as a penalty contest.
• Key point: A proposed assessment does not become final when it is returned to MSHA without reaching the operator.

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.

DRAGON
PRODUCTS COMPANY, LLC

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Docket
No. YORK 2021-0060

A.C.
No. 17-00022-533995

BEFORE: Jordan,
Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On August 19, 2021, the Commission received from Dragon Products Company, LLC (“Dragon”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Dragon claims it never received the
proposed penalty assessment from the Department of Labor. The Secretary of Labor does not oppose the request to reopen and concedes that the assessment was not delivered to the operator but rather, was returned to MSHA.

Section
105(a) states that if an operator “fails to notify the Secretary that [the operator] intends to contest the . . . proposed assessment of penalty . . . the proposed assessment of penalty shall be deemed a final order of the Commission. 30 U.S.C. § 815(a). Here, because the operator never had an opportunity to timely contest the proposed assessment, we conclude that the proposed penalty assessment did not become a final order of the Commission. This obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure. Accordingly, the operator’s motion to reopen is moot.

We deem the operator’s motion a contest of
the relevant penalties. 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, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

C.
Gregory Ruffennach, Esq.

1629
K Street, N.W., STE 300

Washington,
DC 20036

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]