Secretary of Labor v. Kerford Limestone Company

Plain-English summary

Kerford Limestone Company did not contest a proposed penalty within 30 days, so the assessment became a final Commission order. Kerford's counsel prepared the contest paperwork on time and emailed it to the firm's administrative staff, but the paperwork was apparently never filed. The Secretary did not oppose reopening but urged Kerford to prevent future late contests. The Commission found that the missed deadline resulted from administrative error at counsel's firm. It reopened the assessment and remanded the case for penalty proceedings, with the Secretary directed to file a petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and the matter was remanded for further proceedings.
• Key point: Timely preparation followed by an administrative failure to file the contest supported relief from the final assessment.

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.

KERFORD
LIMESTONE COMPANY

:

:

:

:

:

:

:

Docket
No. CENT 2022-0002

A.C.
No. 25-01126-536168

BEFORE:  Traynor,
Chair; Althen and Rajkovich, 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 October 1, 2021, the Commission received
from Kerford Limestone Company (“Kerford”) 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”)
indicate that the proposed assessment was delivered on June 16, 2021, and
became a final order of the Commission on July 16, 2021. Kerford asserts that
the notice of contest was not timely filed due to administrative error. The
relevant paperwork was timely prepared by Kerford’s counsel and emailed to the
firm’s administrative staff, but was apparently never filed. The Secretary does
not oppose the request to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed.

Having
reviewed Kerford’s request and the Secretary’s
response, we find that the notice of contest was not timely filed due to
administrative error on the part of counsel’s firm. 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/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Josh
Schultz, Esq.

Law
Office of Adele L. Abrams P.C.

600
17 th St. #2800 South

Denver,
CO 80202

[email protected]

Emily
Toler-Scott, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

[email protected]