Secretary of Labor v. Cascade Concrete Products Company, Inc.

Plain-English summary

Cascade Concrete Products asked the Commission to reopen three proposed penalties that became final when its contest was not filed with the proper MSHA office. Cascade said it mailed the contest to MSHA's St. Louis payment office with payment for the uncontested citations instead of sending it to the civil penalty office in Arlington. The Secretary did not oppose reopening but urged the company to prevent future filing errors. The Commission found that the failure resulted from an inadvertent administrative error. It reopened the matter and remanded it for further proceedings, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Sending a timely contest to the wrong MSHA office may support reopening when the record shows an inadvertent administrative error.

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.

CASCADE
CONCRETE PRODUCTS    

COMPANY,
INC.

:

:

:

:

:

:

:

:

Docket
No. WEST 2023-0100

A.C.
No. 45-02295-563293

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 January 12, 2023, the Commission received
from Cascade Concrete Products Company, Inc. (“Cascade”) 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 September 19, 2022, and
became a final order of the Commission on October 19, 2022. Cascade contends
that it sent its notice of contest of three citations to MSHA’s penalty
collections office in St. Louis along with the payment of the uncontested
citations. The Secretary does not oppose the request to reopen but notes that
notices of contest should be mailed to MSHA’s Civil Penalty Compliance Office
in Arlington, Virginia, while payments should be sent to MSHA’s collection
office in St. Louis. The Secretary urges the operator to take steps to ensure
that future penalty contests are timely filed.

Having
reviewed Cascade’s request and the Secretary’s
response, we find that the failure to properly file the notice of
contest was the result of inadvertent administrative error. We urge the
operator to take steps to ensure that such errors do not recur. Nevertheless,
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:

Melissa
Hughes

Office
Manager

Cascade
Concrete Products Co., Inc.

P.O.
Box 387

Winthrop,
WA 98862

[email protected]

Luke
Hughes

Owner

Cascade
Concrete Products Co., Inc.

P.O.
Box 387

Winthrop,
WA 98862

[email protected]

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]