Secretary of Labor v. R.J. Valente Gravel, Inc.

Plain-English summary

R.J. Valente Gravel failed to forward a proposed assessment to counsel, who discovered it while checking the status of a related citation contest. The prior contest showed that the operator intended to challenge the citation, and it moved to reopen within 30 days after learning of the assessment. The Secretary opposed relief based on the operator's delinquent-payment history, but the Commission found no significant history of reopening motions. It reopened the assessment and remanded the case. The Commission separately denied Valente's request to strike the Secretary's opposition, which had been filed four days late.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was reopened and remanded, and the operator's motion to strike was denied.
• Key point: A related pre-penalty contest and prompt action after discovery supported relief from the missed assessment deadline.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH
:

ADMINISTRATION (MSHA)
:

:

                    v.

: Docket No. YORK 2023-0115

: A.C. No. 30-03434-578738

R.J. VALENTE GRAVEL, INC. :

BEFORE: Jordan, Chair; Althen, Rajkovich, Baker,
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 August 9, 2023, the Commission received from
R.J. Valente Gravel, Incorporated (“Valente”) 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), 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).

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicates that delivery of the proposed assessment was attempted on June 14,
2023. The assessment became a final order of the Commission on July 14, 2023.

Counsel for Valente states that on July 26, 2023, it checked the
status of the penalty assessment for Citation No. 9713937 and learned that a
penalty had been assessed on June 8, 2023. He then contacted Valente and was
informed that the assessment had been sent directly to the operator instead of
counsel. Through inadvertence and mistake, Valente states that it failed to
forward the assessment to its counsel and failed to contest it. Counsel argues
that Valente clearly intended to contest the assessment as evidenced by its
pre-penalty Notice of Contest for related Citation No. 9713937, Docket No. YORK
2023-0085. Valente acted quickly after learning of the assessment and within 30
days filed its motion to reopen.

The Secretary opposes Valente’s motion to reopen. She
claims that the operator has a significant history of delinquent penalty
payments and maintains that these actions do not demonstrate that Valente is
acting in good faith. She argues that the motion to reopen should be denied
with prejudice because the operator has failed to show good cause and it did
not meet the requirements of Rule 60(b) of the Federal Rules of Civil Procedure
nor the Commission’s requirements for obtaining reopening.

A
review of Valente’s record shows that it does not have a significant history of
filing motions to reopen. Additionally, upon learning of the assessment,
Valente filed the motion to reopen within 30 days. Having reviewed the operator’s
request and the Secretary’s response, we find that due to an administrative
error, the penalty assessment was not timely contested. 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.

        Finally, Valente

filed a motion to strike the Secretary’s opposition of its motion to reopen
arguing that the Secretary initially did not oppose the motion but filed an
untimely opposition with no warning to the operator. R.J. Valente Mot. to
Strike at 1-2. The Secretary responds that her review of the operator’s history
of delinquencies motivated her change of position. She further asserts that its
opposition was filed four days late due to the time it took to assess the
operator’s extensive delinquency history. See Commission Rule 29 C.F.R.
§ 2700.10(d) (requiring that statements of opposition to written motions be
filed within 8 days after service upon the party). The Secretary contends that
her brief delay has not prejudiced Valente nor has the operator established
prejudice to justify dismissing the Secretary’s opposition. Sec’y Opp. to Mot.
to Strike at 1-2. Upon consideration of Valente’s motion to strike and the
Secretary’s Opposition, we deny the operator’s motion.

/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:

Michael T. Cimino,
Esq.

Benjamin J. Wilson, Esq.

JACKSON KELLY PLLC

P.O. Box 553

Charleston, WV 25130

[email protected]

[email protected]

Karen L. Johnston, Esq.

JACKSON KELLY PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

[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
40

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]