Secretary of Labor v. Dragon Products Company, LLC

Plain-English summary

Dragon Products said it timely mailed its penalty contest by certified mail with return receipt requested, but MSHA had no record of receiving it and the Postal Service tracking had expired. MSHA received partial payment of the assessment and later mailed a delinquency notice. Dragon moved to reopen within 30 days of that notice, and the Secretary did not oppose the request. The Commission found good faith based on Dragon's tracked mailing precautions, attempt to locate the package, and prompt reopening request. It reopened the assessment and remanded the matter, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: Certified mailing, follow-up efforts, and a prompt motion supported relief when MSHA did not receive the contest.

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.

DRAGON
PRODUCTS COMPANY, LLC

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Docket
No. YORK 2022-0016

A.C.
No. 17-00022-539342

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 December 22, 2021, the Commission received
from Dragon Products Company, LLC (“Dragon”) 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 August 11, 2021, and
became a final order of the Commission on September 10, 2021. On September 22,
2021, MSHA received partial payment of the assessment. On November 23, 2021, a
delinquency notification was mailed to the operator.

Dragon asserts that its contest of the
assessment was timely mailed through certified mail, return receipt requested. However,
MSHA did not have a record of receiving the contest of the assessment. Subsequently,
Dragon tried to check with the postal service on the status of the contest but
was informed that the tracking number for the package which contained its
contest had expired. Dragon believes the postal service failed to properly
deliver its contest. 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.

In
addition, we note that the motion to reopen was timely filed. The Commission has previously held that “[m]otions to
reopen received within 30 days of an operator’s receipt of its first notice
from MSHA that it has failed to timely file a notice of contest will be presumptively
considered as having been filed within a reasonable amount of time.” Highland
Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Here, the motion to reopen
was filed on December 22, 2021, within 30 days of the operator’s receipt
of the delinquency notification, mailed on November 23.

Having
reviewed Dragon’s request and the Secretary’s
response, we find that Dragon acted in good faith. We note that the
Secretary does not dispute Dragon’s assertion that the operator timely mailed
its contest of the assessment. Dragon took precautions in sending the contest
of the assessment by certified mail, return receipt requested, and tried to
provide tracking information for its contest of the assessment. Dragon also
timely filed its request to reopen.

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:

C.
Gregory Ruffennach

Attorney-at-Law

1629
K Street, N.W., STE 300

Washington,
DC 20036

[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]