Secretary of Labor v. Mulberry Limestone Quarry Co., Inc.

Plain-English summary

Mulberry Limestone correctly mailed payment for uncontested citations to MSHA's St. Louis lockbox. It mistakenly placed its contest in the same envelope instead of sending it to the Arlington office. MSHA later located the contest, but Mulberry did not learn of the mistake until a delinquency notice arrived. The company contacted MSHA and moved to reopen within eight days, and the Secretary did not oppose. The Commission found good cause, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: Prompt action supported reopening when a contest was mistakenly sent to MSHA's payment address with the operator's check.

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.

MULBERRY
LIMESTONE QUARRY

CO., INC

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Docket
No. CENT 2023-0190

A.C.
No. 23-02543-570964

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 May 16, 2023, the Commission received from Mulberry
Limestone Quarry, Co.. Inc. (“Mulberry”) 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 February 13, 2023 and became a final order of the Commission
on March 15, 2023. MSHA received partial payment of the assessment on March 14,
2023, a day before the assessment became a final order of the Commission. A
delinquency notification was mailed to the operator on May 1, 2023, and
delivered on May 8, 2023. The Secretary does not oppose the request to reopen.

Payments for uncontested citations must be
mailed to MSHA’s Lock Box in St. Louis, Missouri. However, contests of proposed
assessments must be mailed to a different MSHA address in Arlington, Virginia. On
March 10, 2023, Mulberry correctly mailed its payment of the uncontested
citations to St. Louis. However, Mulberry mistakenly mailed its contest along
with its payment to the St. Louis address. [1] Mulberry did not
become aware of its failure to timely contest the assessment until it received
a delinquency notice on May 8, 2023. Upon receiving the delinquency notice,
Mulberry promptly contacted MSHA, who informed them of their mistake.

We note that the motion to reopen was
timely filed. The Commission has previously held
that “[m]otions to reopen received within 30 days of an operator’s receipt of
its first notice from MSHA that it has failed to timely file a notice of
contest will be presumptively considered as having been filed within a
reasonable amount of time.” Highland Mining Co., 31 FMSHRC 1313, 1316-17
(Nov. 2009). Here, the motion to reopen was filed on May 16, 2023,
within 30 days of the receipt of the delinquency notification on May 8, 2023. Therefore,
the motion to reopen was filed within a reasonable amount of time.

Having reviewed Mulberry’s request and the Secretary’s response, we find that Mulberry
has demonstrated good cause for its failure to timely respond and acted in good
faith by timely filing its request to reopen. 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:

Matt
Blessant

Tammy
Wyland

Mulberry
Limestone Quarry Co., Inc.

1608
W. 4 th Street

Pittsburg,
KS 66762

[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

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] In its motion to
reopen, Mulberry implies that the same envelope which contained the check for
the uncontested citations also included the form indicating that Mulberry
wished to contest a portion of the assessment. Mulberry also asserts that MSHA
was able to locate the contest of the assessment, but determined that the
contest had been received at the St. Louis, Missouri address.