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.
EXPLOSIVE CONTRACTORS, INC. |
: : : : : : : |
Docket No. CENT 2024-0122 A.C. No. 03-00426-589689 |
BEFORE: Jordan, Chair; Baker and Marvit, Commissioners
ORDER
BY: Jordan, Chair; Baker, Commissioner
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On February 1, 2024, the Commission received from Explosive Contractors, Inc., 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”).[1] 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 December 11, 2023, and became a final order of the Commission on January 10, 2024.[2]
Explosive Contractors asserts that it did not timely contest the proposed assessment because it was waiting for MSHA’s reply to its request for a conference on the citation at issue. Specifically, Explosive Contractors states that it first sent a conference request letter to MSHA in May 2023, shortly after the citation was issued. The contractor attempted to contact MSHA a number of times over the succeeding months by phone and email, but was not informed that its request had been denied until January 18, 2024. On January 25, the contractor sent a letter to MSHA stating that it wished to request a formal hearing on the citation before the Commission, but had missed the window to make such a request because it had only recently been informed that its initial conference request with MSHA was denied. The contractor asserts that during a subsequent phone call, the MSHA District Manager conceded that “the ball [had been] dropped on their end” due to personnel changes.
The Secretary does not oppose the request to reopen. While the Secretary “does not necessarily agree with Explosive Contractors’ characterization of its communications with MSHA,” she acknowledges the contractor’s efforts to communicate with MSHA regarding the citation and penalty assessment, and notes that all prior assessments issued to this contractor have been timely contested and/or paid in full.
A movant’s good faith and intent to contest are both relevant in determining whether the movant has demonstrated good cause to reopen a final assessment. Noranda Alumina, LLC, 39 FMSHRC 441, 443-45 (Mar. 2017); also Rockwell Mining, LLC, 45 FMSHRC 743, 745 (Aug. 2023) (reopening where movant acted in good faith by timely filing its request to reopen); U.S. Silica Co., 39 FMSHRC 1787, 1788 (Sept. 2017) (reopening where movant demonstrated its intent to contest by corresponding with MSHA and promptly filing a motion to reopen). As the Secretary acknowledges, Explosive Contractors has a history of timely compliance, and has been diligent in attempting to advance its challenge of the citation and assessment at issue. Explosive Contractors made repeated attempts to contact MSHA regarding its initial conference request.
Upon learning the conference request was denied, the contractor promptly stated its desire to contest the assessment and filed its motion to reopen.[3]
As the Secretary notes, requesting a conference does not alter an operator’s obligation to timely contest proposed penalties. It appears Explosive Contractors misunderstood this element of the contest process. The Commission has previously reopened final orders where an operator was unfamiliar with some aspect of the contest process. E.g., Highway Materials, Inc., 45 FMSHRC 593 (July 2023) (reopening where the operator intended to contest citations but failed to file a timely contest because it mistakenly believed that the conference with MSHA tolled the deadline to file a contest). However, recurring errors arising from ignorance of the process can indicate inadequate training or an unreliable internal processing system, which are grounds for denial. See Coal-Mac, LLC, 46 FMSHRC 33, 34-35 (Jan. 2024). Explosive Contractors should note that future motions to reopen alleging a similar mistake may be denied.
Having reviewed Explosive Contractors’ request and the Secretary’s response, we find that the contractor’s demonstrated good faith and intent to contest the assessment establish good cause to reopen the final order. 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/ Timothy J. Baker
Timothy J. Baker, Commissioner
Commissioner Marvit, dissenting:
The Mine Act does not grant the Commission jurisdiction to reopen this matter. The plain language of the statute states that once a citation or proposed penalty assessment becomes a final order of the Commission, the Commission has no authority to review it. 30 U.S.C. § 815(a). The Commission’s decades-long reliance on Commission Rule 1(b) and Federal Rule of Civil Procedure 60(b) to sidestep section 105(a) is misplaced.
I dissent from the majority because the statutory language and legislative history do not contemplate reopening final orders such as the one before the Commission here. Section 105(a) of the Act provides procedures for enforcement, stating in pertinent part:
If, within 30 days from the receipt of the
notification issued by the Secretary, the operator fails to notify the
Secretary that he intends to contest the citation or the proposed assessment of
penalty…the citation and the proposed assessment of penalty shall be deemed a
final order of the Commission and not subject to review by any court or agency.
30 U.S.C. § 815(a).
The Commission has historically looked past section 105(a) by citing Commission Rule 1(b), which states that “[o]n any procedural question not regulated by the Act, these Procedural Rules, or the Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b). See Valley Camp Coal Co., 1 FMSHRC 791, 792 n.3 (July 1979). Using this Rule, the Commission has relied, as the majority does here, on Rule 60(b) of the Federal Rules of Civil Procedure, which provides circumstances under which a court may relieve a party from a final order.
The Commission’s caselaw interpreting the Act to allow reopening falters for two reasons. First, Commission Rule 1(b) only operates when there is a procedural question “not regulated by the Act, these Procedural Rules, or the Administrative Procedures Act[.]” 29 C.F.R. § 2700.1(b). With regards to the question of final orders of the Commission, the Act states unambiguously that such matters are “not subject to review by any court or agency.” Such agency necessarily includes the Commission itself and precludes looking beyond the Act. See Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1359 (Fed. Cir. 2008) (“[A]dministrative agencies are generally limited to the exercise of powers delegated them by Congress.”) (citing Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 322 (1961)). Therefore, with regards to reopenings, Rule 1(b) is not relevant.
Second, and more importantly, a Commission Rule cannot supersede the plain language of the Mine Act, as enacted by Congress, no matter how long that Rule has been in effect or how many times the Commission has cited to it. While some courts have ascribed an “inherent authority to reconsider its decisions” to administrative agencies, this has been “[i]n the absence of a specific statutory limitation[.]” Macktal v. Chao, 286 F.3d 822, 825–26 (5th Cir. 2002); see also Albertson v. FCC, 182 F.2d 397, 399 (D.C. Cir. 1950) (“[I]n the absence of statutory prohibition . . . [t]he power to reconsider is inherent in the power to decide.”). Section 105(a) clearly limits the Commission’s power to reconsider decisions, as it does in this case. No section of the Act provides relief parallel to FRCP 60(b) under these circumstances.
The Commission itself has once before considered whether it has jurisdiction to reopen final orders. Jim Walter Res., Inc., 15 FMSHRC 782 (May 1993). In Jim Walter, the Commission reviewed the legislative history of the Mine Act and determined that Congress recognized that under the Coal Act, operators would bring collateral attacks against penalties, leading to a cumbersome process. Id. at 787-788. Therefore, the Commission concluded that “[i]n our view, section 105(a) merely sets forth a general principle of finality covering the procedure for the contest of citations and proposed penalties.” Id. at 787. While the Commission in Jim Walter was correct in its assessment that Congress intended section 105(a) to create much-needed finality to Commission orders, the language of the Act or its legislative history do not support its conclusion that section 105(a) simply conveyed only “a general principle of finality” intended to leave open the question of some final Commission orders.
A review of Courts of Appeal decisions concerning final orders from the Federal Mine Safety and Health Review Commission, or the Occupational Safety and Health Review Commission, which contains nearly identical language,[4] shows no agreement in the federal appeals courts. In J.I. Hass Co., Inc. v. OSHRC, 648 F.2d 190 (3d Cir. 1981), the Third Circuit held that OSHRC had jurisdiction to reopen final orders beyond the 15-day deadline permitted by statute. In support of its conclusion, the court discussed the following hypothetical example:
Thus, if an employee signed for citations and then was killed while returning from the post office, and the letter destroyed, an employer with a meritorious defense could still get no relief if 15 working days elapsed before he learned of the citations. We do not believe Congress intended such a harsh result.
Id. at 194. In contrast, the Second Circuit in Chao v. Russell P. Le Frois Builder, Inc., held that section 10(a) of OSH Act precludes the Commission from exercising jurisdiction over late-filed notice of contests based on Rule 60(b)(1). 291 F.3d 219, 228-29 (2d Cir. 2002). The Le Frois court concluded that the statute (with language parallel to the Mine Act) marshalled against finding OSHRC had the authority to revisit final orders. Id. at 228 (“[W]e have noted that ‘courts construing statutes enacted specifically to prohibit agency action ought to be especially careful not to allow dubious arguments advanced by the agency to thwart congressional intent expressed with reasonable clarity.’”) (citing Indep. Ins. Agents of Am., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 838 F.2d 627, 632 (2d Cir. 1988)); see also Chao v. Roy’s Constr., Inc., 517 F.3d 180, 183 n. 1 (3d Cir. 2008) (noting that in George Harms Construction Co. v. Chao, 371 F.3d 156 (3d Cir. 2004), the Third Circuit reaffirmed its “earlier holding in [Hass], and declined to follow the Second Circuit’s contrary holding in [Le Frois]”).
The parties here concede, and the majority recognizes, that the operator did not timely contest the proposed assessment in accordance with the Act and the Commission’s procedures. The majority also would excuse the operator’s failure to contest the assessment based, in part, on the fact that it was waiting for a response to its request for a conference with MSHA. However, as the majority recognizes, lack of familiarity with agency procedures does not excuse failure to follow proper procedure. See Active Resources, Inc., 46 FMSHRC 848, 850 (Oct. 2024). Even under Rule 60(b), courts hold that ignorance of the law is no excuse.[5] Id. (citing Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th Cir. 1986)).
Courts have made clear that “[s]ince the Commission is no more than a creature of Congress and, as such, may proceed only in conformity with its congressional grant of authority, we look to the Act for a delineation of the powers of the Commission.” Brennan v. Occupational Safety & Health Rev. Comm’n, 502 F.2d 30, 32 (5th Cir. 1974). In the instant matter, the Mine Act has not granted us authority to reconsider final orders of the Commission. To the contrary, it has limited our authority to do so. Therefore, I respectfully dissent.[6]
/s/ Moshe Z. Marvit
Moshe Z. Marvit, Commissioner
Distribution:
Todd Braden
Operations Director
Explosive Contractors, Inc.
118 State Drive
Hollister, MO 65672
Office@explosivecontractorsinc.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] As Commissioner Marvit recognizes in his dissenting opinion, the Commission’s assertion of jurisdiction to reopen final orders is difficult to reconcile with section 105(a) of the Mine Act, which provides that if an assessment is not contested by the operator within 30 days it “shall be deemed a final order of the Commission and not subject to review by any court or agency.” 30 U.S.C. § 815(a) (emphasis added). Nevertheless, despite any uncertainties underlying our authority, for decades and across administrations the Secretary of Labor has acquiesced to our assertion of jurisdiction to reopen final orders. Therefore, consistent with the Commission’s historical practice and as established in our caselaw, Chair Jordan and Commissioner Baker review the mine operator’s motion to reopen.
[2] The parties’ representations are inconsistent regarding the timing of the assessment. The Secretary states the penalties were assessed on December 6 and delivered on December 11, resulting in a final order date of January 10. However, the assessment form is dated November 24 and the contractor asserts it was received in late November, suggesting a final order date in late December. U.S. Postal Service delivery records have not been provided. As neither party asserts that the assessment was timely contested, and the contractor’s motion to reopen was filed after the later of the possible final order dates, the inconsistency does not affect the outcome of this proceeding.
[3] Explosive Contractors was informed its conference request had been denied on January 18, 2024, one week after the assessment became final. The contractor stated its desire to contest the assessment in its January 25 letter, and filed its motion to reopen on February 1. In other words, the motion was filed less than two weeks after learning the conference request had been denied, and less than a month after the assessment became final. Given the contractor’s promptness in seeking to contest the assessment once the conference request was denied, it seems likely the contest would have been timely had MSHA denied the conference request at any time in the seven months prior.
[4] “If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.” 29 U.S.C. § 659(a).
[5] I note that the majority cites Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995), for the proposition that a default is a harsh penalty. However, that case involved a pro se litigant’s petition for discretionary review under 30 U.S.C. § 823(d)(2) after an Administrative Law Judge’s dismissal due to the operator’s failure to attend a hearing, and not a final order under Section 105(a).
[6] The Mine Act sets forth that an operator’s obligation to file an answer begins to run at the receipt of an assessment. Therefore, while the Commission does not have jurisdiction to reopen a case once that deadline has passed, in instances where the operator never received the assessment, or in similar instances, the 30-day period does not run and the matter does not become a final order of the Commission. Therefore, no reopening is required.