FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 10, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

 

                       v.

 

LINCOLN LEASING COMPANY, INC.

 

 

       Docket No. WEVA 2013-726

       A.C. No. 46-08932-292862 6RP  

 

 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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 3, 2013, the Commission received from Lincoln Leasing Company, Inc. (“Lincoln Leasing”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

 

            Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on June 26, 2012, and became a final order of the Commission on July 26, 2012. MSHA mailed a delinquency notice on September 10, 2012, and referred this case to the Department of Treasury for collection on December 24, 2012. Lincoln Leasing asserts that its office administrator was experiencing health issues which caused the failure to timely contest the assessment. Lincoln Leasing states that it discovered the delinquency on March 13, 2013, after its counsel received a Treasury collection notice. The Secretary does not oppose the request to reopen and strongly urges the operator to adopt procedures to ensure that future penalty contests are timely filed.

 

            Having reviewed Lincoln Leasing’s request and the Secretary’s response, in the interest 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                   

                                                                                    Mary Lu Jordan, Chairman

 

 

                                                                                    /s/Michael G. Young                   

                                                                                    Michael G. Young, Commissioner

 

 

                                                                                    /s/ Robert F. Cohen, Jr.                 

                                                                                    Robert F. Cohen, Jr., Commissioner

 

 

                                                                                    /s/ Patrick K. Nakamura                                                                                                                     

Patrick K. Nakamura, Commissioner

                                                                                                                                                           

 

                                                                                    /s/ William I. Althen                    

                                                                                    William I. Althen, Commissioner

 

                                                                                                                                                           

Distribution:

 

Alexander Macia, Esq.

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East

P.O. Box 273

Charleston, WV 25321

 

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

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710