Wayne J. Sand and Gravel, Inc. v. Secretary of Labor and Secretary of Labor v. Wayne J. Sand and Gravel, Inc.

Plain-English summary

A penalty case defaulted and the related contest was dismissed in 2019 after Wayne J. Sand and Gravel did not respond. The company waited until December 2020, more than 16 months after the orders became final, to seek reopening. It said it had not received the penalty petition or show-cause order and that pandemic-related office closure delayed its review of later delinquency notices. The Commission found the motion untimely under the one-year limit for relief based on mistake or excusable neglect. It also found that failing to process mail for ten months was not excusable and denied reopening in both dockets.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1)-(2); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The motion to reopen the defaulted penalty and dismissed contest proceedings was denied.
• Key point: Pandemic-related mail disruption did not excuse a 16-month delay when delinquency notices should have alerted the operator to the default.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

WAYNE
J. SAND AND GRAVEL, INC.

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA) 

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

WAYNE
J. SAND AND GRAVEL, INC.

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

Docket
No. WEST 2019-0097-RM

Docket
No. WEST 2019-0111

A.C.
No. 04-01915-477311

BEFORE:  Traynor,
Chair; Althen and Rajkovich, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (the “Mine Act”).
An Order to Show Cause was issued for the penalty proceeding in Docket No. WEST
2019-0111 on July 8, 2019, which by its terms was deemed a Default Order on
July 29, 2019. Accordingly, an order dismissing the related contest proceeding
in Docket No. WEST 2019-0097-RM was issued on August 26, 2019. On December 18,
2020, Wayne J. Sand and Gravel, Inc. (“Wayne”) submitted a filing in Docket No.
WEST 2019-0097-RM, which we construe as a motion to reopen both the contest and
penalty proceedings.

The Judge’s jurisdiction in the captioned
matters terminated when the default occurred and the dismissal order was
issued. 29 C.F.R. § 2700.69(b). Relief from a Judge’s decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30
U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final
decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, both orders
here have become final decisions.

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”); Jim Walter Res., Inc. , 15 FMSHRC
782, 786-89 (May 1993). We have 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 will be permitted. See Coal Prep. Servs., Inc ., 17 FMSHRC 1529,
1530 (Sept. 1995).

Due to the extraordinary nature of
reopening a penalty that has become final, the operator has the burden of
showing that it should be granted such relief through a detailed explanation of
its failure to timely contest the penalty and any delays in filing for
reopening. The Commission considers the entire range of factors relevant to
determining mistake, inadvertence, excusable neglect, or other good faith
reason for reopening. Further, Rule 60(c) of the Federal Rules of Civil
Procedure provides that a Rule 60(b) motion shall be made within a reasonable
time, and for reasons of mistake, inadvertence, or excusable neglect, not more
than one year after the judgment, order, or proceeding was entered or taken. Fed.
R. Civ. P. 60(c).

Wayne’s motion was filed in December 2020,
more than 16 months after the default and dismissal became final orders of the
Commission. Accordingly, the motion to reopen is untimely under Rule 60(c). J
S Sand & Gravel, Inc. , 26 FMSHRC 795, 796 (Oct. 2004).

We find Wayne’s explanations unpersuasive
with respect to justifying the delay. Wayne asserts that it was unaware of the
penalty proceeding because it never received the Secretary’s Penalty Petition
or the Judge’s Order to Show Cause. However, Wayne concedes that it received
delinquency notices regarding the penalty dated October 2019 and April 2020. [1]
Wayne suggests that it was not aware of these letters until August 2020,
because the operator’s secretary was out of the office due to the Covid-19
pandemic. While a brief or moderate delay in mail processing due to the
pandemic may be considered excusable, a failure to process mail for ten months
is not. The operator should have been aware that it had failed to timely
contest the penalty proceeding in October 2019, more than a year before this
motion was filed.

Accordingly, we deny Wayne’s motion. [2]

/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:

Erik
Jones, President

Wayne
J. Sand & Gravel, Inc

P.O.
Box 27

Moorpark,
CA 93020-0027

[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]

Archith
Ramkumar, 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]

[1] Records suggest
that the operator received documents mailed to its legal address of record for
Health and Safety matters (P.O. Box), but did not receive documents mailed to
its general legal address of record (Buena Vista Road address), which the
operator also provided in its notice of contest. We make no finding here as to
whether a failure to collect mail from a legal address of record would
constitute an excusable mistake if the motion was timely. However, the operator
is urged to enact procedures to ensure that all legal addresses of record are
correct and checked regularly.

[2] Wayne provides no
separate justification with regard to the contest proceeding. Accordingly,
having considered and rejected the operator’s justifications regarding the
penalty proceeding, we deny the motion to reopen in full.