Secretary of Labor v. Morton Salt, Inc.

Plain-English summary

Morton Salt timely contested four MSHA orders but did not separately contest the later proposed penalties tied to those orders. The penalties became final, and the Commission denied with prejudice a separate motion to reopen them. Morton Salt did not appeal that denial or respond to a later show-cause order about these contest cases. The Commission held that the final penalties made the violation allegations true for the proceedings, leaving Morton Salt without a legally cognizable interest in litigating the underlying orders. It dismissed all four order contests as moot.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(a) and 816(a)
• Outcome: The four contest proceedings were dismissed as moot.
• Key point: Contesting an MSHA order does not preserve a challenge to the later penalty, which must be separately and timely contested.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,
:

MINE SAFETY AND
HEALTH :

ADMINISTRATION
(MSHA) : Docket Nos. CENT 2023-0072

: CENT 2023-0073

v.
: CENT
2023-0074

: CENT 2023-0075

MORTON
SALT, INC.
:

BEFORE: Jordan,
Chair; Althen, Rajkovich, Baker, and Marvit, 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 2, 2023, the Commission granted
sua sponte review in the subject contest proceedings of the Judge’s decision
issued on August 31, 2023. The contest proceedings involve Order Nos. 9674876, 9674877,
9674883, and 9674887.

On
May 16, 2024, the Commission issued an order denying with prejudice a motion to
reopen filed by Morton Salt, Inc, in Docket No. CENT 2023-0248. 45 FMSHRC ___,
No. CENT 2023-0248 (May 16, 2024). In the denial, the Commission declined to
reopen proposed penalty assessments that had become final Commission orders
pursuant to section 105(a) of the Mine Act, 30 U.S.C. 815(a). The proposed
penalties that became final Commission orders include those associated with
Order Nos. 9674876, 9674877, 9674883, and 9674887.

On June 3, 2024,
the Secretary of Labor filed a letter, pursuant to Fed. R. App. P. 28(j),[1]
to bring pertinent authority to the Commission’s attention in this matter. The
Secretary noted that the Commission denied with prejudice Morton Salt’s motion
to reopen in Docket No. CENT 2023-0248, which involved penalties associated
with the orders that are at issue in the subject contest proceedings. The
Secretary states that the Commission’s order in CENT 2023-0248 moots the
subject contest proceedings.

On
June 21, 2024, the Commission issued an order directing Morton Salt, within 30
days, to show why the subject contest proceedings, Docket Nos. CENT 2023-0072
through CENT 2023-0075, should not be dismissed as moot. Morton Salt has not
submitted a response to that Order.

Although Morton timely filed
contests of Order Nos. 9674876, 9674877, 9674883, and
9674887, it was required to file a timely contest of the proposed penalties
associated with those orders to contest the penalties. 29 C.F.R. § 2700.26(a) (“A person who wishes to contest a
proposed penalty assessment must provide such notification regardless of
whether the person has previously contested the underlying citation or order
pursuant to § 2700.20.”); 29 C.F.R. § 2700.21(a)
(“The filing of a notice of contest of a citation or
order issued . . . does not constitute a challenge to a proposed penalty
assessment that may subsequently be issued by the Secretary . . . which is
based on that citation or order.”).

Morton failed to timely
contest the proposed penalties associated with Order Nos. 9674876, 9674877,
9674883, and 9674887, and the penalties became final pursuant to section 105(a)
of the Mine Act. The Commission determined that the reason for the operator’s
failure to timely contest the proposed penalties was insufficient to justify
reopening, and the Commission denied with prejudice Morton’s motion to reopen. Morton
did not appeal the Commission’s denial, and the Commission’s order became final
30 days after its issuance. 30 U.S.C. § 816(a).

The
Commission has recognized that a “case is moot when the issues presented no
longer exist or the parties no longer have a legally cognizable interest in the
outcome.” North American Drillers, LLC, 34 FMSHRC 352, 358 (Feb. 2012)
(citation omitted). Similarly, the D.C. Circuit has stated that it “cannot
decide a case if ‘events have so transpired that the decision will neither
presently affect the parties’ rights nor have a more-than speculative chance of
affecting them in the future.’” Sec’y of Labor v. M-Class Mining, LLC, 1
F.4th 16, 21 (D.C. Cir. 2021) (citations omitted).

The
issues presented in the subject contest proceedings are moot given that the
penalties associated with the contested orders are final orders and “the
assertion of violation[s] contained in the [orders are] regarded as true.” Old
Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985).[2]
Because the allegations of violation are regarded as true, the operator has no
legally cognizable interest in the outcome of its contest of the orders.

Accordingly,
we hereby dismiss these contest proceedings as moot.

/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

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Donna
V. Pryor

Husch
Blackwell LLP

1801
Wewatta Street, Suite 1000

Denver,
CO 80202

[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]

Emma L.
Goold, Esq.

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

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

Administrative
Law Judge David P. Simonton

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

721
19th Street, Suite 443

Denver,
CO 80202-2500

[email protected]

[1] Fed. R. App. P.
28(j) provides in part that “[i]f pertinent and significant authorities come to
a party’s attention after the party’s brief has been filed – or after oral
argument but before decision – a party may promptly advise the circuit clerk by
letter, with a copy to all other parties, setting forth the citations.”

[2] Commissioners
Althen and Marvit note fundamental problems with the holding of Old Ben
and relevant portions of Commission Rules 21 and 26. Where there is a conflict
between the Mine Act and Commission precedent or rules, the clear language of
the Mine Act must prevail.