**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)            

 

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VULCAN  ELECTRICAL SERVICES                                             | :

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Docket  No. SE 2023-0014

A.C.  No. 38-00010-561545

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BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On October 21, 2022, the Commission receivedfrom Vulcan Electrical Services (“Vulcan”) 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 August 29, 2022, andbecame a final order of the Commission on September 28, 2022. 

Vulcan explains that a new administrativeassistant received the proposed penalty assessment but did not understand thesignificance of the timing for filing a contest. Consequently, the assistantdid not forward the proposed penalty assessment to the Director of Safety untilOctober 20, 2022. Vulcan provided training regarding the 30-day contest periodto the administrative assistant to ensure that future contests are timely. Theoperator filed the motion to reopen one day after the error was discovered. TheSecretary does not oppose the request to reopen but urges the operator to takesteps to ensure that future penalty contests are timely filed in accordancewith MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s proceduralrules.

 

            Havingreviewed Vulcan’s request and the Secretary’sresponse, and in light of the operator’s prompt filing of a motion toreopen and the operator’s actions to correct the issue, we find that the delayin filing the penalty contest was the result of inadvertence and excusableneglect. 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, 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:

WilliamK. Doran, Esq.

Ogletree,Deakins, Nash, Smoak & Stewart, P.C.

1909K Street, N.W., Suite 1000 

Washington,D.C. 20006

william.doran@ogletreedeakins.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