Secretary of Labor v. TIC - The Industrial Company

Plain-English summary

TIC updated its address of record with MSHA before the proposed assessment was issued. The change was not properly entered in MSHA's system, so the assessment was sent to the old address and returned as undeliverable. TIC discovered the delinquent penalty through MSHA's data system and requested a copy. The Commission held that the assessment never became final because it was not served on the operator. It denied reopening as moot and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was held nonfinal, the reopening motion was denied as moot, and the case was remanded.
• Key point: An assessment sent to an operator's former address after a timely address update does not become final.

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.

TIC

• THE INDUSTRIAL COMPANY

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Docket
No. WEST 2023-0405

A.C.
No. 26-01941-577560

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BEFORE:
Jordan, Chair; Althen, Rajkovich, Baker, and Marvit, 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 September 8, 2023, the Commission received
from The Industrial Company (“TIC”) a motion seeking to reopen a penalty
assessment that had appeared to become a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On
May 30, 2023, TIC appeared to have received a proposed penalty assessment from
the Secretary. On June 29, 2023, the proposed assessment was deemed a final
order of the Commission, when the operator did not file a Notice of Contest
within 30 days.

TIC
asserts that it never received the proposed assessment because it was delivered
to the wrong address by the Mine Safety and Health Administration (“MSHA”). According
to the operator, it discovered in MSHA’s Mine Data Retrieval System that a
penalty for the citation had been issued and was delinquent. The operator’s
paralegal contacted MSHA to get a copy of the assessment. She was informed that
the assessment was delinquent and had been returned as undeliverable. Prior to
filing the contest, TIC had updated its address of record with MSHA on May 8,
2023. However, the change in address was not properly reflected in MSHA’s
system and the proposed assessment was mailed to the operator’s old address. The
Secretary does not oppose the request to reopen, and argues that the Commission
should deny this motion as moot and remand for further proceedings.

Having reviewed TIC’s request and the Secretary’s
response, we conclude that the proposed penalty assessment did not become a final
order of the Commission because it was never served on the operator. The
Commission has held that when an assessment is sent to the wrong address, it
does not become a final order, so a request to reopen it is moot. See Petra
Materials, 32 FMSHRC 1113, 1116 (Sept. 2010); American Sand Co. LLC,
42 FMSHRC 767 (Oct. 2020) (applying this principle to an order of default when
the Chief Judge’s order to show cause was sent to the wrong address). This
obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion to
reopen is moot, and this case 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/ 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Jody
McGee

Paralegal

TIC

• The Industrial Company

8900
Renner Blvd.

Lenexa,
KS 66219

[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

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]