Secretary of Labor v. Thomas Crushing, LLC

Plain-English summary

Thomas Crushing claimed it believed an earlier conference request counted as a penalty contest because MSHA never followed up. MSHA records showed that an official had called the operator the same day, explained how to contest after receiving the assessment, and received an email confirming the operator's clearer understanding. The Commission found that the motion omitted those communications, included a false affidavit statement, did not explain why later filing instructions were ignored, and gave no reason for a 42-day delay in seeking relief. It denied reopening with prejudice over the Secretary's opposition. Commissioner Marvit concurred in denial while repeating his view that the Commission lacks reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen was denied with prejudice.
• Key point: Omitting contrary communications and failing to correct an inaccurate affidavit defeated good faith and reopening relief.

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.

THOMAS
CRUSHING, LLC

Docket
No. CENT 2024-0238

A.C.
No. 03-00052-594930

BEFORE: 
Jordan, Chair; Baker and Marvit, Commissioners

ORDER

BY:
Jordan, Chair, and Baker, Commissioners

This matter arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On June
11, 2024, the Commission received from Thomas Crushing, LLC (“Thomas Crushing”)
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), 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 Department of Labor’s Mine Safety and
Health Administration (“MSHA”) indicates that the proposed assessment was
delivered to the operator on March 28, 2024. The assessment became a final
order of the Commission on April 29, 2024.

MSHA issued a citation to Thomas Crushing
on August 30, 2023. On September 5, 2023, its managing member Michele Thomas
emailed a request for an MSHA Safety and Health Conference. On September 22, 2023,
Ms. Thomas emailed MSHA’s penalty contest division indicating the lack of
response to its request for a conference and wanting to ensure that a
conference was scheduled or that in the alternative “the citation contest is
started.” Op. Exs. 2 and 3. MSHA acknowledged receipt and stated that someone
would reach out directly. Op. Ex. 3. According to Thomas Crushing, the operator
received no further correspondence concerning its request or its contest of the
citation. Thomas Crushing received the proposed assessment on March 28, 2024,
but did not respond because it believed its September 22 email served as its
contest in the absence of a conference. Thomas Crushing learned that the
proposed assessment had become a final order on April 30, 2024, when its
counsel informed it that MSHA’s mine data retrieval system showed that a final
order had been entered on April 27.

Thomas Crushing argues that there is good
cause to reopen because its inadvertent failure to respond to the proposed
assessment was due to its mistaken belief that it had already communicated its
intent to contest the citation if a conference was not held. Its practice in
the past has been to timely request a conference so that the parties can reach
a resolution of the citations. It followed the same practice by timely
requesting the conference and followed up on the request. Further, it was told
by MSHA that someone would be reaching out directly, but “MSHA did not follow
up as represented.” Thomas Crushing asserts that it acted in good faith and
within six days of receiving the citation. Its timely request for a conference
and its follow up indicates its intent to contest the citation and demonstrated
that it did not act with any purpose of evading the citation or delaying a
response. It will prevent similar mistakes from occurring by timely responding
directly to any future proposed assessment, “if the opportunity to participate
in a . . . conference with MSHA cannot be had.”

The Secretary opposes, arguing that Thomas
Crushing did not file its motion to reopen in good faith because it omitted
crucial communications with MSHA on September 22, 2023. [1]
Specifically, MSHA email records confirm that contrary to Ms. Thomas’s claims,
she did in fact continue to correspond with MSHA that day, via telephone and
email. MSHA’s email records confirm that after Ms. Thomas sent the email on September
22, someone from MSHA spoke with her on the phone where they explained that “the
citation ha[d] not been assessed yet,” “how to contest once she receives a
statement,” and “explained how the process works so she is good.” Sec’y
Attachment E. Ms. Thomas sent a subsequent email that day confirming that she
had been talking with MSHA “and now ha[s] a clearer understanding.” Id .
at Attachment F. This communication with MSHA belies Thomas Crushing’s
statement that it had no further correspondence from MSHA, and demonstrated
that by its own admission, Thomas Crushing understood the contest process.

According to the Secretary, Thomas
Crushing’s credibility is questionable given the clear instructions provided. The
Secretary states that requesting a conference is not enough to justify
reopening. Plus, the operator has failed to explain why it still believed its conference
request, which is not mentioned in the assessment, counted as a contest after
receiving instructions to the contrary. Moreover, the operator was not
proactive in following up on this matter for 7 months after speaking to MSHA in
September 2023, nor has it adequately explained its delay in seeking relief. After
learning of the delinquency on April 30, 2024, Thomas Crushing did not file its
motion to reopen until 42 days later, which the Secretary contends was not
reasonable and was outside of the Commission’s 30-day safe harbor. The
Secretary argues that the motion should be denied with prejudice.

It is well recognized in federal
jurisprudence that the issue of whether the movant acted in good faith is an
important factor in determining the existence of excusable neglect. Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 395 (1993);
FG Hemisphere Assocs., LLC v. Democratic Republic of Congo , 447 F.3d
835, 838 (D.C. Cir. 2006). Likewise, the Commission has recognized that a
movant’s good faith, or lack thereof , is relevant to a determination of
whether the movant has demonstrated mistake, inadvertence, surprise or
excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of
Civil Procedure. Lone Mountain Processing, Inc. , 35 FMSHRC at 3346; MM.
Sundt Constr. Co. , 8 FMSHRC 1269,1271 (Sept. 1986); Easton Constr. Co. ,
3 FMSHRC 314, 315 (Feb. 1981).

In addition, the party seeking to reopen a
final penalty bears the burden of showing that it is entitled to such relief,
through a detailed explanation of its failure to timely contest the penalty or
answer the Secretary’s petition, and any delays in filing for reopening. See
Essroc Cement Corp ., 40 FMSHRC 1147, 1148 (Aug. 2018); Dynamic Energy,
Inc ., 39 FMSHRC 1560, 1561 (Aug. 2017); Higgins Stone Co ., 32 FMSHRC
33, 34 (Jan. 2010); Lone Mountain Processing, Inc ., 35 FMSHRC 3342, 3345
(Nov. 2013).

We find that Thomas Crushing acted in bad
faith by omitting key details and submitting a verifiably false affidavit in
support of its motion to reopen. In the affidavit, Ms. Thomas attests that “[n]either
an MSHA specialist nor T. Brittingham [MSHA] ever followed up with me
concerning” the September 22 request of a safety and health conference. However,
the record shows that, to the contrary, an MSHA representative did in fact
speak with Ms. Thomas immediately following her September 22 email and
explained to her the contest process. Ms. Thomas even confirmed the
communication by email and confirmed her understanding of the process. To date,
Thomas Crushing has submitted nothing to the Commission correcting the factual misrepresentation
in its motion to reopen. Essroc Cement , 40 FMSHRC at 1148 (the operator
filed a response correcting the record after MSHA records demonstrated that its
motion to reopen contained inaccuracies).  

Moreover, Thomas received instructions again
on the contest process when it received the assessment six months later. However,
the operator failed to explain why it continued to believe that its conference
request could serve as its contest after receiving contest instructions on two
occasions. Thomas also neglects to explain why it took 42
days to file its motion to reopen after first learning it was delinquent. The
Commission has held that an operator who files a motion to reopen more than 30
days after receiving notice of its default must explain its delay in requesting
relief. See Highland Mining Co ., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Failure
to provide such an explanation may be grounds for denying the motion. Id .

Having reviewed Thomas Crushing’s motion
and the Secretary’s response, we conclude that the operator acted in bad faith
and has failed to provide a detailed explanation of its failure to timely
contest the penalty and why it delayed in filing its motion to reopen. “At a
minimum, the applicant for such relief must provide all known details,
including relevant dates and persons involved, and a clear explanation that
accounts, to the best of the operator’s knowledge, for the failure to submit a
timely response and for any delays in seeking relief once the operator became
aware of the delinquency or failure. . . .” Lone Mountain , 35 FMSHRC at
3345 (citing Higgins Stone Co ., 32 FMSHRC 33, 34 (Jan. 2010)); Panther
Creek Mining, LLC , 46 FMSHRC 9, 10 (Jan. 2024). In the instant matter, the
operator has failed to establish good cause for reopening the above-referenced
case. Accordingly, Thomas Crushing’s motion to reopen is denied with prejudice.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, concurring,

I write to agree with the Majority in this case for
the reasons set forth below.

In Explosive
Contractors , 46 FMSHRC 965 (Dec. 2024), I dissented and explained that
Congress did not grant the Commission the authority to reopen final orders
under section 105(a) of the Mine Act. The Commission’s repeated invocation
of Federal Rule of Civil Procedure 60(b) cannot overcome the statutory
language. However, in Belt Tech , I explained in my concurrence that
“the Act clearly states that to become a final order of the Commission, the
operator must have received the notification from the Secretary.” 46 FMSHRC 975
(citing Hancock Materials, Inc. , 31 FMSHRC 537 (May 2009)). Taken
together, these opinions stand for the proposition that the Commission may not
reopen final orders under its statutory grant, but an operator may proceed if
it has not properly received a proposed order.

In the instant
case, as the Majority recounts, the Commission’s order became final under the
language of section 105(a). The Majority denies reopening in its opinion
because the operator has not alleged good cause or provided a factual
accounting for its failure to timely contest the penalties. Though I believe
the Commission lacks the authority to consider motions to reopen, I concur with
the Majority in denying reopening in this matter.

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Russell
P. Bailey, Esq.

Rose
Law Firm,

120
East Fourth Street

Little
Rock, AR 72201

[email protected]

Thomas
A. Paige, Esq.

Deputy
Associate Solicitor

US
Department of Labor

Office
of the Solicitor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite N4428

Washington,
DC 20210

[email protected]

Melanie
Garris

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] On July 5, 2024,
the Secretary of Labor filed an unopposed motion for an extension of time to
file her response to Thomas Crushing’s motion to reopen. Upon review of the
Secretary’s motion, we grant the Secretary’s extension and accept this response
as timely filed.