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

Plain-English summary

Wayne J. Sand & Gravel said it never received a proposed assessment at its remote operation. Postal tracking showed that the package was held for pickup, returned to its origin, and later recorded as delivered without a signature, leaving the cause of nonreceipt unclear. After receiving a delinquency notice, the operator requested a copy and faxed its contest the same day. The Secretary did not oppose reopening. The Commission found the delay excusable and remanded the case, but warned the operator to establish reliable mail-receipt procedures for future assessments.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: Unclear postal handling and prompt action supported reopening, but remote operators still need reliable procedures for collecting mail.

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.

WAYNE
J. SAND & GRAVEL, INC.

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Docket
No. WEST 2022-0295

A.C.
No. 04-01915-551153

BEFORE: 
Jordan, Chair; Althen, Rajkovich, and Baker, 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 August 1, 2022, the Commission received
from Wayne J. Sand & Gravel, Inc. (“WJSG”) 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 April 10, 2022, and
became a final order of the Commission on May 10, 2022. WJSG asserts it never
received the mailed proposed assessment and notes the operation’s remote location.
After receiving a delinquency notice on June 28, 2022, the operator requested a
copy of the proposed assessment on July 19, and submitted its notice of contest
(by fax) the same day. The Secretary does not oppose the request to reopen but
urges the operator to take steps to ensure that future penalty contests are
timely filed.

Tracking data from the United States
Postal Service indicates the assessment package was delivered to a California
Post Office and marked available for pickup on March 18, 2022, then sent back
to its facility of origin on April 4. The Secretary asserts the assessment was finally
delivered on April 10, but was not signed for. It is unclear whether WJSG’s
failure to receive the assessment package was the result of a USPS mail
processing error (e.g. incorrect address) or operator error (e.g. failure to
regularly check a P.O. Box).

We strongly encourage the operator to
enact procedures to ensure mail is timely received despite the operation’s
remote location, such as regularly checking P.O. Boxes and ensuring personnel
are available to sign for packages. Future motions to reopen may not be granted
where a notice of contest is untimely due to inadequate mail receipt
procedures.  

Ultimately,
however, having reviewed WSJG’s request and the
Secretary’s response, we find that the delay in this instance was
excusable. We note that, due to a mail processing error, WSJG did not timely
receive the proposed assessment. Furthermore, WSJG promptly acted to file its
notice of contest once it became aware of the issue. 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/
Mary Lu Jordan

Mary Lu Jordan,
Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Brett
Jones

Wayne
J. Sand & Gravel, Inc.

P.O.
Box 27

Moorpark,
CA 93020-0027

Fax:
805-523-1805

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]