Secretary of Labor v. U.S. Silica Company

Plain-English summary

U.S. Silica missed a penalty-contest deadline while handling added paperwork and responsibilities from an impact inspection. Its counsel had contacted the company around the deadline, and the company stated that it intended to contest, but it still waited 38 days after finality to seek reopening. The Commission held that this inaction exceeded mistake or excusable neglect and showed inadequate staffing or an unreliable internal processing system. The Secretary did not oppose reopening, but the Commission denied the motion.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: A heavy citation workload does not excuse a missed contest when counsel supplied a timely reminder and the operator still failed to act 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.

U.S.
SILICA COMPANY,

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:

:

:

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Docket
No. LAKE 2015-374-M

A.C.
No. 11-01013-372173

BEFORE:   Jordan,
Chairman; Cohen, and Nakamura, Commissioners[1]

ORDER

BY THE
COMMISSION: 

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.   
  § 801 et seq. (2012) (“Mine Act”).  On March 27, 2015, the Commission
received from U.S. Silica Company (“U.S. Silica”) 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 January 15, 2015, and
became a final order of the Commission on February 17, 2015.  U.S. Silica
asserts that additional paperwork and responsibilities related to an impact
inspection caused its personnel to miss the contest deadline.  The Secretary
does not oppose the request to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed. 

We
note that the operator’s legal counsel contacted the operator about the
citation around the time of the deadline.  The operator stated its intent to
contest the penalty at that time.  In spite of this reminder from counsel, the
operator failed to meet the contest deadline and filed a motion to reopen 38
days after the penalties became a final order.  This inaction goes beyond the mistake,
inadvertence, or excusable neglect contemplated by Rule 60(b). 

Moreover, the Commission has made it
clear that where a failure to contest a proposed assessment results from an
inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Shelter Creek Capital,
LLC, 34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33
FMSHRC 103. 104 (Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155,
1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov.
2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle
Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008).  Receiving an unusually
large number of citations should not excuse an operator’s failure to contest a
citation on time.  The problems that U.S. Silica experienced reflect that the
operator’s staffing levels after the impact inspection were not adequate to
deal with the citations that were issued.

Accordingly, we deny U.S. Silica’s
motion.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Justin
M. Winter, Esq.

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

4740
Corridor Place

Suite
D

Beltsville,
MD 20705

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen.  30 U.S.C. § 823(c).