FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
KEVIN COLEMAN, formerly employed by CARMEUSE LIME |
: : : : : : : : |
Docket No. SE 2024-0135 A.C. No. 09-01228-593452A |
BEFORE: Jordan, Chair; Baker and 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. (2012) (“Mine Act”). On April 4, 2024, the Commission received a motion from Kevin Coleman seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final order of the Commission.
On June 29, 2022, the Mine Safety and Health Administration (“MSHA”) issued Citation No. 9701264 to Carmeuse Lime for an alleged safety violation at its Talona Mountain Mine. Subsequently, MSHA instigated a special investigation against Coleman, the mine supervisor, in connection with the aforementioned citation. On January 17, 2024, MSHA requested a mailing address for Coleman and was informed that anything related to the case should be sent to his counsel. However, on January 31, 2024, MSHA issued a proposed penalty assessment to Coleman and attempted to serve the assessment to the mine site.
MSHA records indicate that the Talona Mountain Mine was listed as abandoned as of December 12, 2023. The mine was closed, and Coleman was no longer employed at that location. Unsurprisingly, when service of the proposed assessment was attempted, USPS could not deliver the assessment and it was promptly returned to sender. MSHA made no further attempt to remedy the faulty service attempt.
Having reviewed Coleman’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because it was never served on Coleman. The Commission has held that when an assessment is sent to the wrong address, it does not become a final order, so a request to reopen it is moot. See Petra Materials, 32 FMSHRC 1113, 1116 (Sept. 2010); American Sand Co. LLC, 42 FMSHRC 767 (Oct. 2020) (applying this principle to an order of default when the Chief Judge’s order to show cause was sent to the wrong address). This obviates any need to invoke Rule 60(b). Accordingly, the Coleman’s motion to reopen is moot, and this case is remanded 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.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chair
/s/ Timothy J. Baker
Timothy J. Baker, Commissioner
/s/ Moshe Z. Marvit
Moshe Z. Marvit, Commissioner
Distribution:
Arthur M. Wolfson, Esq.
Fisher & Phillips LLP
Six PPG Place, Suite 830
Pittsburgh, PA 15222
awolfson@fisherphillips.com
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
Nelson.April@dol.gov
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
scott.emily.t@dol.gov
Melanie
Garris
USDOL/MSHA, OAASEI/CPCO
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@DOL.GOV
Administrative Law Judge Alen Paez
Office of the Chief Administrative Law Judge
Federal
Mine Safety Health Review Commission
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
APaez@fmshrc.gov
Chief Administrative Law Judge Glynn F. Voisin
Office of the Chief Administrative Law
Judge
Federal Mine Safety Health Review Commission
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov