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

Plain-English summary

Lehigh's counsel mistakenly believed that an earlier assessment contest covered all citations from the same inspection. When counsel recognized that 13 citations had not been contested, she moved to reopen them the next day. The Commission found that the missed deadline resulted from a mistake and that Lehigh acted promptly after discovering it. It reopened the citations and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Thirteen citations were reopened and remanded.
• Key point: Counsel's mistaken belief about an earlier contest, followed by next-day corrective action, supported reopening.

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. PENN 2023-0021

A.C.
No. 36-00190-564266

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

ORDER

BY THE COMMISSION:

        This

case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On November 23, 2022, the Commission received from Lehigh Cement Company (“Lehigh”) a motion to reopen a final order of the Commission pursuant to section 105(a) of the 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 to the operator on October 11, 2022, and became a final order of the Commission on November 10, 2022. The operator asserts that counsel unintentionaly failed to file to timely contest the assessment, in part because she mistakenly believed that all citations from the subject inspection had been contested in an earlier separate assessment. Counsel recognized that she made a mistake on November 22, 2022, and on the next day filed a motion to reopen 13 of the citations at issue.[1]

Having reviewed Lehigh’s request and the Secretary’s response, we find that Lehigh has demonstrated that its failure to timely file to contest was the result of a mistake. We note that counsel and the operator recognized their error and promptly moved to reopen the citations. 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:

Margaret
S. Lopez, Esq.

OGLETREE,
DEAKINS, NASH

SMOAK
& STEWART, P.C.

1909
K Street, N.W., Suite 1000

Washington,
DC 20006

[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

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] Specifically,
Lehigh requests to reopen Citation Nos. 9667174, 9667177, 9667178, 9667180, 9667183, 9667188, 9667189, 9667192, 9667193, 9667195, 9667197, 9713407, and 9713410.