Secretary of Labor v. Pinto Valley Mining Corp.

Plain-English summary

Pinto Valley said it timely mailed contest forms for two assessments by certified mail and made partial payments for the uncontested penalties. The company did not have the return receipts, but submitted completed forms, payment records, and affidavits describing its reliable contest procedure. It sought reopening promptly after MSHA issued delinquency notices, and the Secretary did not oppose. The Commission found inadvertence, mistake, and excusable neglect, reopened both assessments, and remanded the consolidated matters.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. §§ 2700.1(b), 2700.12, 2700.28
• Outcome: Both final assessments were reopened and the consolidated matters were remanded.
• Key point: Affidavits, completed contest forms, partial payments, and prompt motions supported reopening even without certified-mail receipts.

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.

PINTO VALLEY MINING CORP.

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Docket No. WEST 2019-0516

A.C. No. 02-01049-000490002

Docket No. WEST 2019-0535

A.C. No. 02-01049-000491992

BEFORE:  Rajkovich, Chairman; Althen and Traynor, 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.
(2012) (“Mine Act”). On September 9 and September 13, 2019, the Commission
received from Pinto Valley Mining Corp. (“Pinto Valley”) motions seeking to
reopen penalty assessments that had become final orders of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

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 in WEST 2019-0516 was delivered on May 13, 2019,
and became a final order of the Commission on June 13, 2019. MSHA’s records
show that the proposed assessment in WEST 2019-0535 was delivered on June 4,
2019, and became a final order on July 5, 2019. In both motions to reopen, Pinto
Valley says that it followed a reliable procedure to contest citations and
orders by certified mail, return receipt requested.

Affidavits by the
mine’s interim safety superintendent state that the notices of contest were
timely filed in both cases. In WEST 2019-0516, the affidavit states that the
operator made a partial payment of $328, which it sent with the notice of
contest on May 14. The affidavit submitted in WEST 2019-0535 states that the
completed notice of contest was mailed on June 4. The affidavit in this case
also states that a partial payment was made, of $9219. [2]
 Both motions include copies of the proposed assessments and completed contest
forms. They do not include copies of the certified mail receipts, but the
affidavits claim that it is common not to receive these forms for MSHA filings.

MSHA sent the
operator delinquency notices, on August 19 for WEST 2019-0535, and on August 26
for WEST 2019-0516. The operator filed its motions to reopen on September 9 and
September 16. The Secretary does not oppose the requests to reopen, but urges
the operator to take steps to ensure that future penalty contests are timely
filed.

Having reviewed Pinto Valley’s requests and the Secretary’s responses,
we find that the operator has sufficiently explained its failure to
timely contest the citations at issue as the result of inadvertence, mistake,
and excusable neglect. The motions were filed
promptly after MSHA notified the operator of its delinquencies, and in both cases
the operator states that it timely mailed the notices of contest, but did not
receive a receipt for delivery. The agency received partial payment for both
dockets. Both motions are well-supported by affidavits and documentation.

In
the interest of justice, we hereby reopen these matters and remand them 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 (by e-mail):

Donna Vetrano Pryor, Esq.

Attorney for Pinto Valley Mining Corp.

Husch Blackwell, L.L.P.

[email protected]

Emily Toler Scott , Esq.

Office of the Solicitor

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health
Administration

[email protected]

[1] The two motions
addressed in this order rely upon the same rationale and common facts as a
basis for re-opening. For the limited purpose of addressing these motions to
reopen, we hereby consolidate these dockets, which involve similar procedural
issues. 29 C.F.R. §2700.12.

[2] MSHA’s response to each motion acknowledges receipt
of the payments submitted by the operator on July 25, 2019. The assessments in
both cases had become final by that date.