Secretary of Labor v. Lehigh Cement Company, LLC (Commission decision, March 13, 2023)

Plain-English summary

Lehigh Cement mailed its notice of contest well before the deadline. It mistakenly sent the notice to MSHA's St. Louis penalty payment address instead of the Civil Penalty Compliance Office in Arlington. The Secretary did not oppose reopening but urged the operator to improve its filing process. The Commission found excusable neglect because the contest was timely sent to the wrong address. It reopened the assessment, remanded the matter, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: Timely mailing may support reopening when a contest is sent to MSHA's payment address, but the operator should correct its routing procedures.

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.

LEHIGH
CEMENT COMPANY LLC

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Docket
No. LAKE 2022-0204

A.C.
No. 12-00063-552413

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”). On July 14, 2022, the Commission received from Lehigh Cement Company LLC (“Lehigh”) 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 April 4, 2022, and became a final order of the Commission on May 4, 2022. Lehigh asserts that on April 18, 2022, it mistakenly mailed its notice of contest to the incorrect address for the payment of penalties in St. Louis, MO, instead of correctly mailing it to MSHA’s Civil Penalty Compliance Office in Arlington, Virginia. 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.

Having
reviewed Lehigh’s request and the Secretary’s response, we find that the operator acted with excusable neglect by inadvertently mailing the notice of contest to the wrong address, despite doing so in a timely manner. The operator, however, should reassess its procedures to ensure that future contests are properly filed. 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/ 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:

Derek
M. Smith

Lehigh
Cement Company Mitchell

180
North Meridian Road

Mitchell,
IN 47446

[email protected]

Emily
Toler Scott, Esq.

Counsel,
Appellate Litigation

Division
of Mine Safety and Health

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South – Suite 401

Arlington,
VA 22202-5450

[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]

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]