Secretary of Labor v. Genesis Alkali, LLC

Plain-English summary

During a temporary change in administrative staff, Genesis Alkali mailed two intended citation contests with its payment for the other violations to MSHA's St. Louis payment address instead of the Arlington contest office. The company later checked MSHA's data system and saw that the two citations were listed for payment. It notified counsel, who sought reopening, 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: A temporary staffing change and misdirected contest supported relief when the operator discovered the problem through MSHA's records and acted through counsel.

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.

GENESIS
ALKALI, LLC

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Docket
No. WEST 2020-0156-M

A.C.
No. 48-00152-503109

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 15, 2020, the Commission received
from Genesis Alkali, LLC (“Genesis”) 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 November 5, 2019, and
became a final order of the Commission on December 5, 2019. Genesis contends
that due to a temporary change in its administrative staff, it inadvertently
sent its contest of the proposed assessments for Citation Nos. 9348735 and 9348741,
along with its payment for the remaining violations on the same proposed
assessment, to MSHA’s St. Louis address instead of its Arlington office. After
checking MSHA’s Data Retrieval System on December 29, 2019, Genesis discovered
that the two citations it intended to contest were pending payment. The
operator asserts that it notified counsel, who subsequently filed this motion
to reopen. The Secretary confirms that Genesis submitted payment and does not
oppose the request to reopen, but urges the operator to take steps to ensure
that future penalty contests are timely filed.

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

Erik
Dullea, Esq.

[email protected]

Ephraim
Hintz, Esq.

Ephraim.Hintz@
huschblackwell.com

Husch
Blackwell LLP

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]