Secretary of Labor v. Lehigh Cement Company, LLC

Plain-English summary

Lehigh Cement Company LLC tried to contest part of a proposed penalty assessment within the Mine Act's deadline. It mistakenly mailed the contest with payment for uncontested citations to MSHA's St. Louis payment office instead of the correct office in Arlington, Virginia. Lehigh supplied proof of delivery and said it had changed its procedures to prevent, identify, and correct similar mistakes. The Secretary did not oppose reopening but urged Lehigh to ensure future contests were filed on time. The Commission found excusable neglect because the contest was submitted timely to the wrong address, reopened the assessment, and remanded the case for penalty proceedings.

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: A contest mailed on time but sent to MSHA's payment office instead of its contest office supported reopening when the operator documented delivery and corrected its process.

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.

LEHIGH
CEMENT COMPANY LLC

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Docket
No. LAKE 2020-0053-M

A.C.
No. 12-00063-500999

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 January 6, 2020, the Commission received
from Lehigh Cement Company LLC (“Lehigh”) 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 October 18, 2019, and
became a final order of the Commission on November 7, 2019. Lehigh asserts that
it had mistakenly mailed its notice of contest to an incorrect address along
with a check to pay certain penalties for uncontested citations, on November 1,
2019. Specifically, the operator claims that it had sent the notice of contest
to the MSHA St. Louis office for penalty payments, instead of mailing the
notice to the correct MSHA office in Arlington, VA. It offers proof of delivery
to support its claims. 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. Lehigh states that it has since changed its procedures “to
prevent, identify and correct any mistakes” in the future.  

Having
reviewed Lehigh’s request and the Secretary’s response, we find that Lehigh acted
with excusable neglect by submitting its notice of contest in a timely manner,
albeit to the wrong address. 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:

Larry
R. Harshbarger

Lehigh
Cement Company LLC, Mitchell Plant

180
N. Meridian Rd.

Mitchell,
IN 47446

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

Division
of Mine Safety and Health

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Emily
Toler Scott, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]