Secretary of Labor v. Alleyton Resource Company, LLC (Commission decision, May 17, 2024)

Plain-English summary

Alleyton Resource timely contested a citation, but administrative staff later sent the related assessment for payment without realizing the citation was disputed. Counsel found the mistaken payment while proactively reviewing MSHA's data system and moved to reopen within 30 days after the assessment became final. The Secretary initially did not oppose reopening, then later sought dismissal of the citation contest as moot because the penalty had not been separately contested. The Commission found a good-faith mistake, denied the dismissal motion, reopened the assessment, and remanded the consolidated proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The Secretary's dismissal motion was denied, the assessment was reopened, and the consolidated case was remanded.
• Key point: A timely citation contest, proactive monitoring, and prompt correction supported relief from an accidental penalty payment.

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.

ALLEYTON
RESOURCE COMPANY,

LLC

:

:

:

:

:

:

:

Docket
No. CENT 2024-0206

A.C.
No. 41-02916-569870

Docket
No. CENT 2023-0020

A.C.
No. 41-02916-569870

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 March 21, 2023, the Commission received from Alleyton Resource Company, LLC (“Alleyton”) 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). [1]

        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 to Alleyton on January 23, 2023, and became a final order of the Commission on February 22, 2023. In its motion to reopen, the operator states that it timely filed a notice of contest of Citation No. 9513801, by counsel. The proposed penalty assessment related to the citation was not served on Alleyton’s counsel. The operator states that the proposed assessment form was sent for payment by the operator’s administrative staff who did not realize that the citation had been contested. Alleyton ’s counsel discovered the mistaken payment while reviewing MSHA’s Mine Data Retrieval System (“MDRS”). [2] On May 23, 2023, the Secretary filed a response indicating that she does not oppose the operator’s request to reopen. [3]

Subsequently, the Secretary filed a motion
to dismiss the contest proceeding as moot. In the motion to dismiss, the Secretary argued that, although the operator filed a notice of contest of Citation No. 9513801, it failed to contest the penalty associated with the citation. The motion makes no reference to the Secretary’s previously filed non-opposition to Alleyton’s motion to reopen.

Having reviewed Alleyton’s request and the Secretary’s response, we find that the operator has demonstrated that its failure to timely file a contest of the proposed penalty was the result of a mistake. The operator demonstrated that the mistake was made in good faith by pro-actively reviewing MSHA’s MDRS and promptly moving to reopen upon discovery of the error. [4] The operator was also timely in its filing of a notice of contest of Citation No. 9513801. Accordingly, w e hereby deny the Secretary’s motion to dismiss. In the interest of justice, we 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. C onsistent 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Adele
L. Abrams, Esq., ASP, CMSP

Law
Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

[email protected]

Mary
K. Cobb, Esq.

Office
of the Solicitor

U.S.
Department of Labor

525
S. Griffin Street, Suite 501

Dallas,
TX 75202

[email protected]

[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] We hereby
consolidate docket numbers CENT 2023-0020 (contest proceeding), and CENT 2024-0206 (civil penalty proceeding) because they both involve contests relating to Citation No. 9513801. 29 C.F.R. § 2700.12.

[2] Commissioner
Baker has previously stated that it is his position that the accidental payment of a civil penalty does not constitute excusable neglect. See, e.g., Omya, Inc. , 45 FMSHRC 131 (Mar. 2023). However, in light of the fact that the operator filed a timely contest to the underlying citation, Commissioner Baker would determine that in the instant case payment was not the result of an inadequate or unreliable internal processing system. See Greenbrief Mineral, LLC , 45 FMSHRC 822, 823 n.1 (Sep. 2023).

[3] The Secretary
also noted that the motion to reopen was erroneously filed under the docket number assigned to the notice of contest rather than being assigned a separate civil penalty proceeding docket number. We have corrected this docketing error, and the correct docket numbers appear in the caption of this order.

[4] The Commission
has 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 of a proposed civil penalty 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 proposed penalty assessment became a final order of the Commission on February 22, 2023, and the operator filed its motion to reopen on March 21, 2023.