FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
BEELMAN TRUCK CO. |
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Docket No. SE 2018-84-M A.C. No. 01-00040-448729 |
BEFORE: Althen, Acting Chairman; Jordan, and Young, Commissioners1
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 February 7, 2018, the Commission received from Beelman Truck Co. (“Beelman”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On September 23, 2017, the U.S. Postal Service attempted to deliver a proposed penalty assessment from the Secretary to the operator. However, the assessment was returned unclaimed. On October 23, 2017, the proposed assessment was deemed a final order of the Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days. Subsequently, a delinquency notification was mailed to the operator on December 11, 2017.
The operator claims that it filed a timely contest for a citation underlying the proposed assessment but claims that it never received the assessment itself. The Secretary does not oppose the request to reopen. Significantly, the Secretary concedes that the assessment was returned unclaimed and does not argue that the operator refused to accept delivery of the assessment.
Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, the evidence indicates that Beelman never received the assessment and thus, did not have an opportunity to notify the Secretary that it intended to contest the assessment.
Having reviewed Beelman’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator never received the assessment. This obviates any need to invoke Rule 60(b).
Accordingly, the operator’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/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
Distribution:
Jane H. Heidingsfelder, Esq.
Jones Walker LLP
201 St. Charles Ave., 50th Floor
New Orleans, LA 70170-5100
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450