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.
R.E. PIERSON MATERIALS CORP. |
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Docket No. PENN 2022-0105 A.C. No. 36-00111-552721
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BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners
ORDER TO SHOW CAUSE
BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Act”). On July 19, 2022, the Commission received from R.E. Pierson Materials Corp. (“R.E. Pierson”) a motion seeking to reopen the captioned case, which had become a final order of the Commission pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a).
Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on April 13, 2022, and became a final order of the Commission on May 13, 2022. MSHA issued a delinquency notice to the operator on June 28, 2022.
R.E. Pierson’s motion, filed by counsel, states that timely contest was not filed because the operator mistakenly failed to forward the assessment to counsel’s office.[1] However, in a letter attached to the motion, the mine’s operations manager states that the failure to timely file contest “was due to a clerical issue in the cous[e]l’s office.” Ex. 1 (emphasis added).
The party seeking to reopen a final order bears the burden of showing that it is entitled to such relief through a detailed explanation of its failure to timely contest the penalty or answer the Secretary’s petition. See, e.g., Dynamic Energy, Inc., 39 FMSHRC 1560, 1561 (Aug. 2017). Absent further explanation, there appears to be an inconsistency between the representations made by counsel in the motion and the representations made by the mine’s operations manager in the attached letter. Namely, counsel asserts that the mine operator made a mistake, while the mine operator asserts that the mistake occurred in counsel’s office.
In light of the identified discrepenacy, the parties are hereby ORDERED TO SHOW CAUSE within 30 days of the date of this order why this proceeding should not be dismissed. In responding to this order, R.E. Pierson and its counsel should provide a uniform and detailed explanation of the failure to timely contest the proposed penalty. If no response is filed, the final order will not be reopened.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chair
/s/ William I. Althen
William I. Althen, Commissioner
/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner
/s/ Timothy J. Baker
Timothy J. Baker, Commissioner
Distribution:
Adele L. Abrams, Esq.
CMSP, Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
Safetylawyer@gmail.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
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
[1] Specifically, the motion to reopen states:
The attached Letter from Mine Operations Manager . . . states
. . . due to a clerical error in their office, the proposed assessment was not forwarded to outside counsel along with the citations in time to file the contest . . . .
The citations were later forwarded to undersigned counsel for review, but the proposed assessments were not included in the email transmission due to clerical error.