FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

 

                        v.

 

G & R MINERAL SERVICES, INC.

 

 

            Docket No. SE 2013-331-M

            A.C. No. 01-00629-313889 ACR

 

 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). On April 11, 2013, the Commission received from G & R Mineral Services, Inc. (“G&R”) 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 February 19, 2013, and became a final order of the Commission on March 21, 2013. G&R also received a second proposed assessment, which it contested on March 27, 2013. G&R asserts that its safety director mistakenly believed he was contesting both proposed assessments at once. G&R discovered its mistake after conferring with counsel. G&R filed this motion to reopen after receiving MSHA’s late notice on April 5, 2013. The Secretary does not oppose the request to reopen, and urges the operator to take steps to ensure that future penalty contests are timely filed.[1]

 

            Having reviewed G&R’s request and the Secretary’s response, 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, Chairman

 

 

                                                                                    /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

 

 

                                                                                    /s/ William I. Althen

                                                                                    William I. Althen, Commissioner      

                                                                                                                                                                                                                                                                                                                                                                       

 

Distribution:

 

Tamera K. Erskine, Esq.

Smith, Spires & Peddy, P.C.

2015 Second Ave., North, Suite 200

Birmingham, AL 35203

Tamera@ssp-law.com

 

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710

 


[1] We note that this is the second time within the last three years that G&R has requested reopening of a penalty assessment because of its untimely filing of a notice of contest. See G&R Mineral Servs., Inc., 33 FMSHRC 2070 (Sept. 2011).