Secretary of Labor v. DelHur Industries, Inc.

Plain-English summary

MSHA treated DelHur's assessment as delivered when it reached the local post office serving the company's post-office box. DelHur said it did not actually receive the assessment until 12 days later and calculated its contest deadline from that date. The company mailed its contest within that mistaken deadline, then sought reopening about two weeks after MSHA explained that the assessment was already final. The Secretary did not oppose relief and noted DelHur's history of timely contests. The Commission found good cause and good faith, reopened the assessment, and remanded it for a penalty proceeding, with one Commissioner dissenting.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: A documented misunderstanding about when a post-office-box mailing was delivered can support reopening when the operator contests and seeks relief promptly.

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.
DELHUR INDUSTRIES, INC. |
|
|
Docket No. CENT 2025-0269 A.C. No. 41-05396-615049
|

BEFORE: Rajkovich, Chair; Jordan, Baker, and Marvit, Commissioners

ORDER

BY: Rajkovich, Chair; Jordan, and Baker, Commissioners

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine
Act”). On May 10, 2025, the Commission received from DelHur Industries Inc. (“DelHur”)
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 the proposed assessment was delivered to the operator’s local post office in West Richland, Washington on February 28, 2025. DelHur routinely received mail at a post office box at this post office. On March 30, 2025, the proposed assessment was deemed a final order of the Commission because DelHur had not filed a Notice of Contest within 30 days.

On April 10, 2025, two weeks later, DelHur mailed its contest of the assessment. On April 24, 2025, MSHA notified the operator that because the contest was not timely filed, the assessment had become a final order of the Commission. Ex. C. to MTR. On May 10, 2025, a couple weeks later, the operator filed its request to reopen.

DelHur does not dispute that its local post office received the assessment on February 28, 2025. However, the operator asserts that the assessment was not delivered to or received by DelHur until March 12, 2025. Therefore, DelHur claims that its deadline to contest the assessment was April 12, not March 30. The Secretary of Labor does not oppose the request to reopen.

We note that the motion to reopen was
timely filed on May 10, approximately two weeks after MSHA notified DelHur that
the assessment had become a final order. 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 within 30 days after
MSHA notified the operator that it had failed to timely file a contest. Therefore,
the motion was filed within a reasonable amount of time.

Moreover, we note that the operator’s contest was mailed on April 10, within two weeks of the assessment becoming a final order. As the operator mistakenly believed that the filing deadline was April 12, this indicates a good faith effort to timely contest the assessment. The Secretary also notes that the operator has not filed any other recent requests to reopen, and that the operator has a history of timely contesting assessments.

Having reviewed Del Hur’s request and the
Secretary’s response, we find that the operator 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/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, dissenting:

I write to disagree 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, however, votes to reopen the case. The Mine Act has not
granted us authority to reconsider final orders of the Commission as I set out
more fully in Explosive Contractors. To the contrary, it has limited our
authority to do so. Therefore, I respectfully dissent and would deny reopening.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Peter S. Gould, Esq.

Cole A. Wist, Esq.

Michael F. Cox, Esq.

Squire Patton Boggs LLP

717
17th Street Suite 1825

Denver CO 80202

Carlton C. Jackson, Esq.

U.S. Department of Labor

Office of the Solicitor

525 S. Griffin Street, Suite 501

Dallas, Texas 75202

Telephone: (972) 850-3121

Facsimile: (972) 850-3101

[email protected]

[email protected]

Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

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]

Acting Chief Administrative Law Judge Michael G. Young

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]