Secretary of Labor v. C&C Leasing & Excavating, Inc.

Plain-English summary

C&C's owner normally sent proposed assessments to a safety consultant for review. While the owner was repeatedly hospitalized because of illness, he failed to forward this assessment and the contest deadline passed. The company responded by designating another employee to handle assessments during future absences. The Secretary did not oppose relief. The Commission found excusable neglect based on the medical circumstances, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: Hospitalization may establish excusable neglect when it disrupts the contest process and the operator creates backup coverage.

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.

C&C
LEASING & EXCAVATING, INC.

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Docket
No. WEVA 2023-0536

A.C.
No. 46-06448-577602

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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 14, 2023, the Commission received
from C&C Leasing & Excavating, Inc. (“C&C”) 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 to C&C on June 5, 2023.
The assessment became a final order of the Commission on July 5, 2023. On
August 21, 2023, MSHA sent the operator a delinquency notice.

C&C
submits that its owner receives and sends proposed penalty assessments to its
safety consultant to analyze and determine whether to contest the proposals. However,
because its owner was in and out of the hospital due to sickness, he failed to
send the subject proposed penalty assessment to C&C’s safety consultant for
processing. The operator states that C&C has incorporated a plan to
designate another employee to be responsible during any absences to ensure
future timely submissions. 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.

Having
reviewed C&C’s request and the Secretary’s
response, we find that the operator acted with excusable neglect due to
the medical circumstances and hospitalization surrounding the operator’s owner.
See Benton Cty Stone Co., 45 FMSHRC 485, 486 (June 2023). 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Christopher
D. Pence, Esq.

Pence
Law Firm PLLC

10th
Hale Street, 4th Floor

Post
Office Box 2548

Charleston,
WV 25329-2548

[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]