Secretary of Labor v. Callender Construction Company

Plain-English summary

Callender Construction said it never received the proposed penalty assessment that later became final. MSHA subsequently sent the company a delinquency notice. The Secretary did not oppose reopening but urged the operator to ensure future contests are timely. The Commission found inadvertence or mistake amounting to good cause, reopened the assessment, and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: Claimed nonreceipt of the proposed assessment supported relief from the resulting final order.

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.

CALLENDER
CONSTRUCTION

COMPANY,
INC.

:

:

:

:

:

:

:

:

Docket
No. LAKE 2020-0092-M

A.C.
No. 11-00214-495359

BEFORE: Rajkovich,
Chairman; Althen and Traynor, 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 February 19, 2020, the Commission received
from Callender Construction Company, Inc. (“Callender”) 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 July 8, 2019, and became
a final order of the Commission on August 7, 2019. Callender contends that it
never received the proposed penalty assessment. On September 23, 2019, MSHA
sent a delinquency notice to Callender. 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 Callender’s request and the Secretary’s
response, we find that Callender failed to timely contest penalties
through inadvertence or mistake, and that such inadvertence or mistake
constitutes good cause to reopen the penalty proceeding. 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/ 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:

Erik
Dullea, Esq.

[email protected]

Ephraim
Hintz, Esq.

Ephraim.Hintz@
huschblackwell.com

Husch
Blackwell LLP

Emily
Scott, Esq.

Office
of the Solicitor

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

[email protected]