Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 28, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

J & A TRUCKING

:
:
:
:
:
:
:

Docket No. WEVA 2009-1002
A.C. No. 46-09085-158131 D679

Docket No. WEVA 2009-1003
A.C. No. 46-09085-161199 D679

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On February 27, 2009, the Commission received from J & A Trucking (“JAT”) a motion by counsel 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).

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).

JAT states that it is a small family-owned trucking company, whose office functions are handled on a part-time basis by Debra Whitlock, wife of the company manager. On July 24, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000158131 to JAT, which the company states it intended to timely contest and believed it had contested. JAT eventually discovered, however, that due to

Mrs. Whitlock’s inadvertence or mistake, it had failed to file the contest form, and the assessment became a final order on September 5, 2008.

On August 25, 2008, MSHA issued a second assessment to JAT, No. 000161199. JAT asserts that it never received that assessment. It became a final order on October 18, 2008.

The Secretary of Labor opposes reopening either assessment. She states that JAT’s explanation for failing to contest the first assessment is conclusory and thus does not establish a basis for reopening. As for the second assessment, the Secretary states it was delivered to JAT’s address of record, a post office box. However, when it was not claimed by JAT, it was returned to MSHA two weeks later. The Secretary also objects to reopening on the grounds that JAT was notified of the delinquency of the assessments in October and December 2008, respectively, yet did not file its motion to reopen until late February 2009. Finally, the Secretary notes that JAT is delinquent in paying four other assessments, totaling $12,578.

Having reviewed JAT’s request and the Secretary’s response, we conclude that JAT has failed to provide a sufficiently detailed explanation for its failures to timely contest the proposed penalty assessments. JAT’s explanation that it failed to file a timely contest to the first assessment due to “inadvertence or mistake,” without any further elaboration, does not provide the Commission with an adequate basis to justify reopening of the assessment. See, e.g., Eastern Assoc. Coal LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). With regard to the second proposed assessment, JAT’s motion was silent on why the operator failed to retrieve it from its post office box.

In addition, in considering whether an operator has unreasonably delayed in filing a motion to reopen a final Commission order, we find relevant the amount of time that passed between an operator’s receipt of a delinquency notice and its subsequent filing of a motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009). Although the Secretary’s response raised the issue that JAT failed to explain why, after it was informed of the delinquencies, it took as long as it did to request reopening, the operator did not file a reply providing an explanation. We encourage parties seeking reopening to provide further information in response to pertinent questions raised in the Secretary’s response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June 2008).

Consequently, the operator also passed on the opportunity to provide an explanation for why it had failed to pay other delinquencies. Moreover, according to the DRS, JAT has failed to pay or contest additional penalties that were proposed after the time it filed its motion.

Accordingly, we hereby deny without prejudice JAT’s request to reopen. Eastern Assoc. Coal, LLC, 30 FMSHRC at 394; FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). Should JAT choose to renew or amend its motion, it should rectify the deficiencies outlined here, and use the opportunity to respond to the Secretary’s statement regarding other assessments which JAT may be delinquent in paying. Any amended or renewed request by the operator to reopen these assessments must be filed within 30 days of this order. Any such request filed after that time will be denied with prejudice.