FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
November 15, 2011
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
MOLTAN COMPANY, LP
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Docket No. SE 2010-1224-M A.C. No. 40-02968-222734
Docket No. SE 2011-137-M A.C. No. 40-02968-2352288 |
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On September 22 and November 22, 2010, the Commission
received from Moltan Company, LP (“Moltan”) motions made by counsel seeking to reopen two
penalty assessments that had become final orders 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).
However, we have held 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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”) issued Proposed Assessment No. 000222734 to Moltan on June 15, 2010. The operator states that Moltan directed a new clerical employee to email and fax the proposed assessment to its counsel for contest pursuant to the operator’s standard operating procedures. Moltan states that on September 14, 2010, it received a notice from MSHA stating that the operator was delinquent in paying the proposed penalties. Upon investigation, it was discovered that the employee had mistakenly emailed the assessment to an incorrect email address by omitting one word from the email address and had failed to follow up with a faxed copy.
On October 12, 2010, MSHA issued Proposed Assessment No. 000235228 to Moltan. The operator explains that upon receiving the proposed assessment, the operator forwarded it to counsel by email/cell phone for contest while counsel was in North Dakota. Although counsel forwarded the proposed assessment to another attorney in her law firm, it was not received by that attorney due to sporadic cell phone signal problems. The error was discovered when counsel observed on MSHA’s Data Retrieval System that the proposed penalties had become a final order of the Commission because they had not been contested.
The Secretary opposes Moltan’s requests to reopen Proposed Assessment Nos.
000222734 and 000235228 on the basis that the operator has made no showing of circumstances
that warrant reopening. She asserts that the operator maintained inadequate or unreliable internal
distribution procedures, which do not constitute an adequate excuse for reopening under Rule
60(b).
It appears that the operator’s failure to timely contest the proposed assessments resulted from unusual circumstances involving inadvertent error rather than from inadequate or unreliable distribution procedures. Accordingly, 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. Consistent with Rule 28, the Secretary shall file petitions 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, Chairman
/s/ Michael F. Duffy
Michael F. Duffy, Commissioner
/s/Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021