Secretary of Labor v. R.E. Pierson Materials Corp.

Plain-English summary

R.E. Pierson's counsel said the operator failed to forward the assessment to counsel, while the mine's operations manager said the clerical mistake occurred in counsel's office. The Commission found those accounts inconsistent. It ordered the operator and counsel to provide a uniform, detailed explanation within 30 days or face dismissal without reopening the final assessment.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The parties were ordered to show cause within 30 days why the proceeding should not be dismissed.
• Key point: Conflicting accounts of who caused a missed deadline do not satisfy the burden to provide a detailed explanation.

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.

R.E.
PIERSON MATERIALS CORP.

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Docket
No. PENN 2022-0105

A.C.
No. 36-00111-552721

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER TO SHOW
CAUSE

BY THE COMMISSION:

        This

case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Act”). On July 19, 2022, the Commission received from R.E.
Pierson Materials Corp. (“R.E. Pierson”) a motion seeking to reopen the
captioned case, which had become a final order of the Commission pursuant to
section 105(a) of the Act, 30 U.S.C. § 815(a).

Records of the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) indicate that the proposed assessment
was delivered on April 13, 2022, and became a final order of the Commission on May
13, 2022. MSHA issued a delinquency notice to the operator on June 28, 2022.

R.E. Pierson’s motion, filed by counsel,
states that timely contest was not filed because the operator mistakenly failed
to forward the assessment to counsel’s office.[1]
However, in a letter attached to the motion, the mine’s operations manager
states that the failure to timely file contest “was due to a clerical issue
in the cous[e]l’s office.” Ex. 1 (emphasis added).

The party seeking to reopen a final order
bears the burden of showing that it is entitled to such relief through a
detailed explanation of its failure to timely contest the penalty or answer the
Secretary’s petition. See, e.g., Dynamic Energy, Inc., 39 FMSHRC 1560,
1561 (Aug. 2017). Absent further explanation, there appears to be an
inconsistency between the representations made by counsel in the motion and the
representations made by the mine’s operations manager in the attached letter. Namely,
counsel asserts that the mine operator made a mistake, while the mine operator
asserts that the mistake occurred in counsel’s office.

        In

light of the identified discrepenacy, the parties are hereby ORDERED TO SHOW
CAUSE within 30 days of the date of this order why this proceeding should
not be dismissed. In responding to this order, R.E. Pierson and its counsel
should provide a uniform and detailed explanation of the failure to timely
contest the proposed penalty. If no response is filed, the final order will not
be reopened.

/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:

Adele
L. Abrams, Esq.

CMSP,
Law Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

[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

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1]
Specifically,
the motion to reopen states:

The attached Letter from Mine Operations
Manager . . . states

. . . due to a clerical error in their
office, the proposed assessment was not forwarded to outside counsel along with
the citations in time to file the contest . . . .

The citations were later forwarded to
undersigned counsel for review, but the proposed assessments were not included
in the email transmission due to clerical error.