FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
September 26, 2011
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. PARSONS ELECTRIC COMPANY, INC. |
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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 June 3, 2011, the Commission received from Parsons Electric Company, Inc. (“Parsons”) 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 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 record indicates that the proposed assessment was delivered to Parsons’ address of record and signed for by E. Peterson on March 29, 2011. The proposed assessment became a final order of the Commission on April 28, 2011. Parsons asserts it never received the proposed assessment. Parsons further asserts it first discovered the citation was listed as a “final order” while reviewing its Contractor ID on the MSHA website. After contacting the MSHA office, Parsons received a copy of the proposed assessment by email on May 31, 2011. The motion to reopen was filed the next day, on June 1, 2011.
The Secretary opposes the request to reopen and states that the operator offers no
explanation for its assertion that it never received the proposed assessment, which is contradicted
by MSHA records.
However, in considering an operator’s request to reopen a final Commission
order we find relevant the amount of time that has passed between the date the operator first
learned the penalty was not timely contested and the operator’s filing of its motion to reopen.
See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 10-11 (Jan. 2009); Highland Mining Co., 31
FMSHRC 1313, 1316 (Nov. 2009). Here, Parsons did not wait to receive a delinquency notice
from MSHA, contacted the office to receive a copy of the assessment, and filed a motion to
reopen immediately thereafter.
Having reviewed Parsons’ request and the Secretary’s response, in the interests 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, Chairman
/s/____________________________________
Michael F. Duffy, Commissioner
/s/____________________________________
Michael G. Young, Commissioner
/s/____________________________________
Robert F. Cohen, Jr., Commissioner
/s/____________________________________
Patrick K. Nakamura, Commissioner
Distribution:
Bonnie Lunzer, Safety Director
Parsons Electric Company, Inc.
5960 Main Street, NE
Minneapolis, MN 55432
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
US Department of Labor
1100 Wilson Blvd. 25th Floor
Arlington, VA 22209
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