Secretary of Labor v. Duininck, Inc. (Commission decision, May 18, 2023)

Plain-English summary

Duininck paid $1,359 for all three citations and sent a letter expressly stating that it did not intend to contest them. The operator later asked the Commission to reopen the case, but still did not seek to contest the citations and instead wanted to discuss its safety practices with MSHA. The Commission found no mistake, inadvertence, excusable neglect, or other reason to undo the final order. It held that the payment was a deliberate choice by a knowledgeable operator. The Commission denied reopening and noted that it could not order MSHA to hold a conference.

Decision snapshot

• Cited authority: 30 C.F.R. § 100.6(a)
• Outcome: The request to reopen was denied.
• Key point: A deliberate, informed payment cannot be reopened merely to obtain a safety-practices conference with MSHA.

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.

DUININCK,
INC.

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:

:

:

:

:

Docket
No. LAKE 2022-0058

A.C.
No. 21-03663-540443

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”). The record reveals that the proposed assessment was delivered to the Operator on August 30, 2021. On September 22, 2021, the Mine Safety and Health Administration (“MSHA”) received full payment of $1,359.00 for all three citations by a check dated September 9, 2021. A “To Whom It May Concern” letter from the operator accompanied the check. The signatory to the letter stated that he was an experienced and knowledgeable safety professional. The letter expressly disclaims any intention to contest the citation and demonstrates the payment of the penalty was a conscious payment by a knowledgeable operator.

Subsequently,
the operator filed a letter requesting reopening. Even there, however, the operator disclaims any desire to contest the citation. Instead, it asked for an opportunity to discuss its safety practices with MSHA.

30
C.F.R. § 100.6(a) provides MSHA with sole discretion to grant a request for a conference where issues may be discussed. The Commission grants reopening in accordance with the factors set forth in Rule 60(b) of the Federal Rules of Civil Procedure. See 29 C.F.R. 2700.1(b); Fed. R. Civ. P. 60(b). The operator does not allege a mistake, inadvertent conduct, excusable neglect, or other reason justifying relief that led to its payment and the proposed penalty assessment becoming a final order. The motion reflects that the operator made the deliberate choice to pay the penalties after receiving the penalty assessment rather than to contest the penalties before a Commission Administrative Law Judge.

Accordingly, the request to reopen is
DENIED. [1]

/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:

Terry
P. Keenan

Safety
Manager

Duininck
Inc.

408
6 th Street

Prinsburg,
MN 56281

[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

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] We further note
that the Commission cannot order MSHA to have a conference with an operator.