Secretary of Labor v. Thyssenkrupp Industrial Solutions (Commission decision, August 18, 2023)

Plain-English summary

Thyssenkrupp Industrial Solutions asked to reopen a penalty assessment after filing its contest about three weeks late. The assessment package was missing one citation, and the company waited for the MSHA District Office to provide a copy before deciding to file without it. The company later received the missing citation. The Secretary did not oppose reopening but urged better procedures for future contests. The Commission found the short delay excusable and the eventual filing evidence of a good-faith intent to contest, then reopened and remanded the matter.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: A short filing delay while seeking a missing citation can be excusable when the operator ultimately files rather than continuing to wait.

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.

THYSSENKRUPP

INDUSTRIAL
SOLUTIONS

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:

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Docket
No. CENT 2022-0219

A.C.
No. 41-00071-551832

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 August 18, 2022, the Commission received from Thyssenkrupp Industrial Solutions (“Thyssenkrupp”) 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). The Commission issued an order requesting further information from the operator, which Thyssenkrupp timely responded to on August 9, 2023.

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 April 1, 2022, and became a final order of the Commission on May 2, 2022. Thyssenkrupp mailed its notice of contest on May 23, 2022. Thyssenkrupp asserts that it delayed because it was waiting for the MSHA District Office to provide a copy of one of the citations that was missing from the assessment package. Thyssenkrupp eventually mailed the notice of contest rather than continuing to wait, but due to the delay, the filing was untimely. Thyssenkrupp eventually received a copy of the missing citation on June 30, 2022. 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.

Having
reviewed Thyssenkrupp’s request and the Secretary’s response, we find that Thyssenkrupp’s approximately three-week delay in filing while waiting for paperwork was excusable. We note that the operator showed a good faith desire to contest the assessment by ultimately choosing to file its notice of contest rather than continuing to wait. 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 o 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:

Brandon
Witz

Head
of Health & Safety

Thyssenkrupp
Industrial Solutions

180
Interstate North Pkwy Suite 300

Atlanta
GA 30339

[email protected]

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

[email protected]

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

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]