Secretary of Labor v. Commonwealth Mining, LLC

Plain-English summary

Commonwealth Mining said it did not receive a proposed assessment containing four citations it intended to contest, although the Secretary confirmed delivery to the address of record. The operator adopted procedures and training to prevent another missed filing. Its representative promptly sought reopening after receiving an MSHA delinquency notice, and the Secretary did not oppose. 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, corrective procedures, and prompt action after delinquency supported reopening despite delivery to the address of record.

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.

COMMONWEALTH
MINING, LLC

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Docket
No. VA 2020-0021

A.C.
No. 46-09414-501548

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 January 8, 2020, the Commission received
from Commonwealth Mining, LLC (“Commonwealth”) 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 15, 2019, and
became a final order of the Commission on November 14, 2019.  Commonwealth,
through its representative, claims that it did not receive the proposed
assessment, but that it intended to contest the four citations included in the
proposed assessment.  It states that it has instituted procedures and provided
training to avoid future occurrence.  On December 30, 2019, MSHA sent a
delinquency notice to Commonwealth.  Upon receipt of MSHA’s delinquency notice,
Commonwealth’s representative promptly filed a motion to reopen the final
penalty assessment.  The Secretary confirms that the proposed penalty
assessment was delivered to Commonwealth ’s
address of record.  However, he does not oppose the request to reopen and urges
the operator to take steps to ensure that future penalty contests are timely
filed. 

Having
reviewed Commonwealth’s request and the
Secretary’s response, we find that Commonwealth
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:

James
F. Bowman

[email protected]

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]