Secretary of Labor v. W.W. Clyde & Co.

Plain-English summary

W.W. Clyde received a proposed assessment by email before MSHA recorded delivery of the certified-mail copy. With telephone help from an MSHA employee, the safety director completed the contest form and mailed it by certified mail to the correct address. The Commission found that the contest was submitted before the assessment could become final, so the operator was never in default. It denied the reopening motion as moot, left the case open, and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. § 2700.1(b)
• Outcome: The motion to reopen was denied as moot, and the still-open case was remanded.
• Key point: A contest filed before the assessment became final prevented default even though MSHA had not yet recorded delivery of the mailed assessment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH      

ADMINISTRATION (MSHA)         

v.

W.W. CLYDE & CO.

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Docket No. WEST 2020-0141-M

A.C. No. 42-01729-499482

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.
(2012) (“Mine Act”). On January 7, 2020, the Commission received from W.W.
Clyde & Co. (“W.W. Clyde”) a motion seeking to reopen a penalty assessment
that appeared to have 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 30, 2019, and would have
become a final order of the Commission on December 3, 2019. W.W. Clyde’s motion
says that was in regular contact with MSHA concerning this assessment, and that
it received the proposed assessment by email on October 17, 2019. The motion
says an MSHA employee helped the operator’s safety director fill out the form
over the telephone. The motion says the operator then mailed the notice of
contest via certified mail, return receipt requested, and includes
documentation supporting this claim.

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 at the correct address. However,
it appears that the operator did in fact submit its notice of contest to the
correct address before the proposed assessment became final. The problem is
that the operator returned its notice of contest, having received it in advance
by email, before MSHA had recorded the delivery of its assessment by certified
mail.

Having reviewed W.W. Clyde’s request and the Secretary’s response, we
find that the proposed assessment did not become final because the operator
submitted a timely notice of contest. Thus, the
operator has not been properly found to be in default. Accordingly, the operator’s motion is denied as moot. This case remains open , and is remanded 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 .

/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):

Nathan Neal

Safety Director

W.W. Clyde and Co.

Orem, UT 84057

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12 th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge Glenn Voisin

Federal Mine Safety & Health Review Commission

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 12 th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]