Secretary of Labor v. Liberty Aggregates LLC

Plain-English summary

Liberty Aggregates did not contest a four-citation penalty assessment within 30 days, made a partial payment, and later received a delinquency notice. The operator said it had repeatedly contacted MSHA offices during January and February 2022 to understand the basis for the large assessment. It discovered the citations listed as delinquent on MSHA's website on March 24, contacted counsel, and moved to reopen shortly afterward. The Secretary did not oppose relief. The Commission found the missed deadline inadvertent, reopened the assessment, and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: Repeated efforts to obtain information from MSHA and prompt action after discovering delinquency supported reopening for inadvertence.

Full text (FMSHRC public release)

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.

LIBERTY
AGGREGATES LLC

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Docket
No. CENT 2022-0145

A.C.
No. 23-02513-548052

BEFORE:  Traynor,
Chair; Althen and Rajkovich, 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 May 4, 2022, Liberty Aggregates, LLC, filed
a motion 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).

The
Secretary of Labor states that records of the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) indicate that a proposed assessment was sent
to the operator on January 4, 2022, and was delivered on January 18, 2022. The
Secretary asserts that the assessment became a final order on February 17, 2022,
30 days after its delivery. On March 4, 2022, MSHA received partial payment
toward one of the four citations at issue in the assessment. On April 5, 2022,
MSHA sent the operator a delinquency notice for the remaining amount. 

Liberty
Aggregates states that during January and February 2022, it made multiple
attempts to contact the local MSHA field office and the MSHA national office to
understand the basis for the large penalty assessment. On March 24, 2022, it
discovered that the subject citations were listed as delinquent on MSHA’s
website. Shortly thereafter, the operator contacted counsel and filed the
subject motion to reopen. Liberty Aggregates asserts that its failure to timely
contest the penalty assessment was inadvertent. The Secretary does not oppose
the motion to reopen.

Having
reviewed Liberty Aggregate’s request and the
Secretary’s response, we find the operator’s failure to timely contest
the proposed assessment was inadvertent. We hereby
reopen this matter, and remand the case 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

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

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Erik Dullea, Esq.

Donna Vetrano
Pryor, Esq.

Kayla Loveless,
Esq.

Husch Blackwell
LLP

1801 Wewatta
Street, Suite 1000

Denver, CO  80202

[email protected]

[email protected]

[email protected]