Secretary of Labor v. GCC Dacotah, Inc.

Plain-English summary

GCC Dacotah failed to contest two proposed penalty assessments because of an improper understanding and implementation of its internal procedure. The company paid the uncontested portions before the respective contest deadlines. The Secretary did not oppose reopening but urged the operator to ensure future contests are timely. The Commission found inadvertence, mistake, and excusable neglect, reopened both assessments, and remanded the consolidated matters for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. §§ 2700.1(b), 2700.12, 2700.28
• Outcome: Both final assessments were reopened and the consolidated matters were remanded.
• Key point: A sufficiently explained internal procedure failure supported relief from two final penalty assessments.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA)          

v.

GCC DACOTAH, INC.

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Docket No. CENT 2020-0155-M

A.C. No. 39-00022-508281

Docket No. CENT 2020-0156-M

A.C. No. 39-00022-509671

BEFORE:  Rajkovich, Chairman; Althen and Traynor, Commissioners

ORDER

BY THE COMMISSION:

These matters arise
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(2012) (“Mine Act”). On May 28, 2020, the Commission received from GCC Dacotah,
Inc., (“GCC Dacotah”) two motions seeking to reopen penalty assessments that
had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C.

§ 815(a). [1]

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 assessments were delivered on February 3 and March 9 and
became final orders of the Commission on March 5 and April 9, respectively. GCC
Dacotah’s motion says that the proposed assessments in these matters were not
timely contested due to an improper understanding and implementation of an
internal procedure. GCC Dacotah’s motion notes that it paid the uncontested
penalties for the assessments before the contest date.  The Secretary does not
oppose the requests to reopen, but urges the operator to take steps to ensure
that future penalty contests are timely filed.

Having reviewed GCC Dacotah’s requests and the Secretary’s responses,
we find that the operator has sufficiently explained its failure to
timely contest the citations at issue as the result of inadvertence, mistake,
and excusable neglect. In the interest of
justice, we hereby reopen these matters and remand them 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/ Marco M.
Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution (by e-mail):

C. Gregory Ruffennach, Esq.

Counsel for CGG Dacotah, Inc.

1629 K Street, NW, Suite 300

Washington, DC 20036

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12 th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge Glenn Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

U.S. Department of Labor

Mine Safety and Health Administration

201 12 th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

[1]
The two motions addressed in this order rely
upon the same rationale and common facts as a basis for re-opening. For the
limited purpose of addressing these motions to reopen, we hereby consolidate
these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.