Secretary of Labor v. Sims Crane, Inc.

Plain-English summary

Sims Crane missed the 30-day deadline to contest an imminent-danger order for a worker allegedly exposed to a fall hazard, believing that its later contest of the related citation and penalty also covered the order. The operator repeatedly included the order in its filings, and the Secretary's prehearing report likewise stated that both the citation and order would go to trial before later arguing that the order had never been timely contested. Because Sims moved to reopen more than one year after the order became final, the Commission majority could not grant ordinary mistake-based relief under Federal Rule of Civil Procedure 60(b)(1). The majority instead found extraordinary circumstances under Rule 60(b)(6), emphasizing that the agency reinforced Sims' misunderstanding, no delinquency notice issued because imminent-danger orders carry no penalty, and Sims diligently litigated as though the order were pending. It reopened the order and remanded for a merits proceeding. Commissioner Jordan dissented, reasoning that Sims was partly at fault, faced no extreme hardship, and could not use Rule 60(b)(6) to avoid the one-year limit for its own mistake.

Decision snapshot

• Cited authority: 30 U.S.C. § 817(e)(1) and 30 C.F.R. § 56.15005
• Outcome: The final imminent-danger order was reopened and remanded for further proceedings, over one Commissioner's dissent.
• Key point: Agency conduct that affirmatively reinforces an operator's reasonable belief that an order is already being litigated can create extraordinary circumstances for reopening after one year.

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.

SIMS
CRANE, INC.

:

:

:

:

:

:

:

Docket
No. SE 2017-97-RM

BEFORE: Althen, Acting
Chairman; Jordan, Young, and Cohen, Commissioners

ORDER

BY: Althen, Acting
Chairman; Young, and Cohen, Commissioners

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.   
§ 801 et seq. (2012) (“Mine Act”). On December 19, 2016, the Commission
received from Sims Crane, Inc. (“Sims”) a motion seeking to reopen an Imminent
Danger Order that had become a final order of the Commission pursuant to
section 107(e)(1) of the Mine Act, 30 U.S.C.        § 817(e)(1).

Under
section 107(e)(1) of the Mine Act, an operator who wishes to contest an Imminent
Danger Order must apply to the Commission within 30 days of issuance. The
Commission is then charged with affording the operator a hearing to determine
whether the Order should be vacated, affirmed, modified, or terminated. 30
U.S.C. § 817(e)(1).

On
September 23, 2015, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued an Imminent Danger Order, No. 8823572, to Sims
alleging that a miner was walking without fall protection where there was a
danger of falling. A related citation, No. 8823573, was issued on the same day
for an alleged violation of 30 C.F.R.       § 56.15005. [1]

Pursuant to section 107(e)(1) of the
Mine Act, the operator had until October 23, 2015 to apply to the Commission for
modification or vacation of the Imminent Danger Order. The operator failed to
provide that notification within the statutory period. Sim’s motion indicates that
it was unaware of the application requirement and that it believed it would
have an opportunity to contest the Order at a later date, in a manner similar
to the process for challenging a proposed penalty assessment under section
105(a). However, penalties are not assessed for an Imminent Danger Order under
the Mine Act and no further opportunities for challenging Order No. 8823572 existed
after the initial 30-day period.

On or about December 3, 2015, Sims
received a Notice of Contest Rights and Instructions and a Proposed Assessment
(Form 1000-179) from MSHA. Those forms concerned the proposed penalty
assessment for Citation No. 8823573 and instructed the operator on the
procedures for contesting that assessment before the Commission. Sims checked
that it wished to contest all violations listed in the proposed assessment and
requested a formal hearing. MSHA received Sims’ contest on December 23, 2015. In
its motion, Sims asserts that it believed that in contesting the citation and
proposed assessment, it was also contesting the Imminent Danger Order.

On February 9, 2016, the operator’s
contest was docketed as No. SE 2016-81, designated as a simplified proceeding, and
assigned to an Administrative Law Judge. On March 25, 2016 and again on June 22
or 23, 2016, Sims filed informational updates regarding this matter. In both of
those submissions, the operator requested that both the citation and the
Imminent Danger Order be vacated. The Secretary never objected to the inclusion
of the Imminent Danger Order in Sims’ filings.

On October 28, 2016, counsel for the
Secretary filed a Pre-Hearing Report with the Judge. In that report, the
Secretary stipulated that, “the citation and imminent danger order at issue in
this proceeding were properly served upon Sims as required by the Mine Act . .
.” and further that “the citation and imminent danger order at issue in this
proceeding may be admitted into evidence by stipulation for the purpose of
establishing its issuance.” The Secretary also stated that he believed “the
single citation and imminent danger order in this $270 docket will be
proceeding to trial.” Finally, the Secretary asserted, “[a]ll aspects of
this citation and imminent danger order are at issue . . .” (emphasis
added). In Sim’s motion to reopen, it asserts that these statements “reaffirmed
[its] belief that the Order had been contested and that all stakeholders were
aware of it.”

On October 31, 2016, the Judge convened
a prehearing status call. During that call the Judge raised for the first time
the possibility that the Imminent Danger Order had not been timely contested. Notwithstanding
the stipulations contained in the Secretary’s Pre-Hearing Report, counsel for
the Secretary then argued for the first time that the order had not been
contested.

On November 14, 2016, a hearing was held
in this matter. At the hearing, the Judge again raised the issue of whether the
Imminent Danger Order had been contested in a timely manner. The Judge determined
that there was no indication in the record of any challenge to the order. The
record was left open after the hearing to permit Sims to provide such evidence.

On November 23, 2016, Sims argued in an
email to the Judge’s office that it had contested the Order at the same time as
it had contested the proposed penalty assessment for Citation No. 8823573
because “the Order was referenced by number in the text of the Citation.”

On January 13, 2017, the Judge issued
his Decision and Order in this matter. The Judge substantively addressed the
Secretary’s allegations regarding Citation No. 8823573. However, with respect
to Order No. 8823572, the Judge noted that the Mine Act and the Commission’s
procedural rules require an operator to notify the Commission that it wishes to
Contest an Imminent Danger Order within 30 days. He determined that marking the
proposed assessment regarding the related citation was not the proper procedure
for contesting the order. Further, even if it was permissible to challenge an
Imminent Danger Order in that fashion, the Judge noted that in this case the
operator filed its challenge to the proposed assessment well after the October
23, 2015 deadline. As a result, the Judge ruled that he lacked jurisdiction
over the order and declined to address it substantively.

As
noted above, on December 19, 2016, Sims filed a Motion to Reopen. In it, Sims
requested relief from the final Imminent Danger Order pursuant to Federal Rule of
Civil Procedure 60(b)(1), which provides for relief from a final judgement that
was entered as a result of “mistake, inadvertence, surprise, or excusable
neglect . . . .” Fed. R. Civ. P. 60(b). The operator stated that this rule was
incorporated into the Commission Rules. See 29 C.F.R. § 2700.1(b). Sims argued
that the assessment form was ambiguous and that it reasonably believed it had
properly contested the order when it returned that form. Further, Sims argued
that its “intention to contest the Order has always been clear.”

On
January 18, 2017, the Secretary of Labor filed an Opposition to Sims’ Motion to
Reopen (which he later amended). In it, the Secretary noted that the Federal
Rules of Civil Procedure provide that that such a motion must be filed “within
a reasonable time” and that if relief is requested under, inter alia ,
Rule 60(b)(1), the request must be made within a year of the final judgment. It
noted that in this case, the order became final in October 2015 and the motion
to reopen was filed in December 2016, more than a year after the final order. As
a result, the Secretary argued that the motion must be denied.

The Commission has held that in
appropriate circumstances, we possess jurisdiction to reopen uncontested
assessments that have become final Commission orders. 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. 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).

When the Commission considers a request
to reopen a proposed assessment which has become final, it usually does so in
accordance with Rule 60(b)(1), under which a final judgment against a party may
be relieved on the basis of “mistake, inadvertence, surprise, or excusable
neglect.” See, e.g. , KenAmerican Res., Inc. , 20 FMSHRC 199,
199-200 (Mar. 1998) (illness of safety director and lack of coordination
between safety director and accounting department found to be inadvertence or
mistake); Austin Powder Co. , 33 FMSHRC 581 (Mar. 2011) (operator’s email
to counsel requesting filing of contest inadvertently sent to inactive email
account). This is the rule cited by Sims in its motion to reopen.

The Secretary correctly notes that pursuant
to Rule 60(c)(1), a motion under Rule 60(b) “must be made within a reasonable
time – and for reasons (1), (2), and (3) no more than a year after the entry of
the judgment or order or the date of the proceeding.” Hence, in cases seeking
reopening of a final order, where the basis for the request is mistake,
inadvertence, surprise, or excusable neglect, and the request is made more than
one year after the order became final, the Commission has denied relief. See ,
e.g. , Newmont USA Ltd , 31 FMSHRC 808 (July 2009); J.S. Sand
& Gravel, Inc. , 26 FMSHRC 795 (Oct. 2004).

In the instant matter, it is undisputed
that Sims’ motion to reopen was filed more than a year after the Imminent
Danger Order became final. Thus, under our existing case law, we cannot grant
relief using guidance from Rule 60(b)(1). However, that is not necessarily the
end of the inquiry. As we have noted previously:

On past and very infrequent occasions,
the Commission has been guided by Rule 60(b)(6), which provides that relief
from a judgment or order may be granted for “any other reason that justifies
relief.” Under Rule 60(b)(6), a motion seeking relief need not be filed within
one year from entry of the judgment or order, although it must be filed within
a “reasonable time.” Fed. R. Civ. P. 60(c)(1). The Commission has considered
reopening penalties which had become final pursuant to section 105(a), relying
on Rule 60(b)(6), even though the motion had been made more than one year after
the penalty has become final. See, e.g., Brian D. Forbes , 20 FMSHRC 99
(Feb. 1998) (remanding to judge where individual respondent claimed that he had
no actual knowledge of the citation issued against him); Contractors Sand
& Gravel , 23 FMSHRC 570 (June 2001) (remanding to judge to consider
whether “extraordinary circumstances” exist where operator claims that it
understood that assessments were included in separate settlement agreement).

Master
Products Corp. ,
33 FMSHRC 645, 647-648 (Apr. 2011).

Master Products concerned an
operator’s motion to reopen a final penalty assessment under section 105(a) of
the Mine Act. 33 FMSHRC at 645. As here, the Secretary opposed reopening on the
grounds that the motion was filed more than a year after the order had become
final. Nonetheless, upon reviewing the relevant circumstances, we ultimately
determined that Rule 60(b)(6) applied to motions to reopen final Commission
orders and that such a reopening was appropriate under the circumstances. That
is, we determined that there were extraordinary circumstances that justified
setting aside the default final order.

In that case, we noted that the operator
had received a proposed assessment from the Secretary and had timely filed its
contest. 33 FMSRHC at 650. However, it had mailed that contest to the wrong MSHA
Office. Id . Nonetheless, “[a]ll of the events subsequent to the
operator’s timely submission led it to reasonably believe that it had properly
requested a hearing.” Id . In fact, MSHA verbally confirmed to the
operator that it had received the contest.  We determined that the “operator
exercised diligence in pursuing its contest by making several attempts to
contact MSHA and inquire as to the status of its case and responding to each
correspondence it received from the agency.” Id . The operator learned
that the assessment had become final when it received a delinquency
notification. The operator repeatedly contacted MSHA via mail regarding the
delinquency, but received no reply. The operator also contacted the collection
agency within two days of receiving the delinquency notice to explain that it
had contested the citation at issue.

We went on to explain why we found that
the operator’s motion, while filed over a year after the assessment had become
final, was nonetheless made within a reasonable time, as required by Rule
60(c). We noted that for half of the 16-month period of default, the operator
was corresponding with MSHA’s Civil Penalty Compliance Office and the
Department of Treasury’s collection agency. 33 FMSHRC at 651. We further noted
that the operator had received no response from MSHA despite “clear articulations
of its understanding of the situation and express requests.” Id . We determined
that the operator’s misapprehension arose from MSHA’s inconsistent and
misleading communication which would lead a reasonable person to conclude that
the case had been properly contested and was being held up by bureaucratic
delays. Put succinctly, we stated:

Nothing in the record indicates that
MSHA took any action to correct the operator’s clearly-expressed understanding
of the circumstances. In relying on the agency’s silence and its earlier
representations, Master Products failed to take further action within one year
of the order becoming final because it reasonably believed that no further
action was necessary.

Id . Therefore, we determined
that reopening was appropriate.

The
situation here is substantially similar. Sims, like Master Products, failed to
properly contest an issuance before the Commission and it became a final order. [2]
Nonetheless, Sims clearly believed that it had properly contested the Imminent
Danger Order when it filed its contest to the related Citation. It consistently
referred to both the Citation and the Order in all of its filings and expressed
its intention to contest both. Further, Sims acted diligently and pursued its
claim rigorously. It provided updates to the court (in which it reiterated its position
regarding the Imminent Danger Order) and participated in pre-hearing
procedures. At no time did Sims exhibit anything but a good-faith belief that
the Order was docketed for review. [3]

At all relevant times Sim’s clearly
expressed its understanding that it had properly contested the imminent danger
order. What makes this case extraordinary, and therefore worthy of
consideration under Rule 60(b)(6), is that MSHA affirmatively endorsed the
operator’s stated misunderstanding. Indeed, the agency behaved at all times as
though it had received a timely contest. Unlike in Master Products ,
where the operator mostly experienced silence from the Secretary following the
delinquency notice, the Secretary here prepared for the case as though it would
involve the Imminent Danger Order. He even stipulated that the Judge had
jurisdiction over the matter and made frequent references to the Order in his Prehearing
Report. Further, the issuance here was not assessable and, as a result, Sims
never received a delinquency notice that might have provided some indication
that the Order had not been properly challenged.

It is clear that Sims took no action in
the year following the final order because it reasonably believed that it had
properly contested the Imminent Danger Order and was in the process of
litigating the matter. Although the Secretary undoubtedly did not intend to
deceive Sims, he fostered this mistaken belief. It was only after the one-year
deadline had already passed and the Judge raised the issue that the Secretary argued
that the Imminent Danger Order had not been contested. Under these
circumstances, we conclude that it is appropriate to grant the relief requested
by Sims and that that request was made within a reasonable time pursuant to
Rule 60(c)(1). [4]

Therefore, in the
interest of justice, and based on Rule 60(b)(6), 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.

/s/ William I. Althen

William I. Althen, Acting Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

Commissioner
Jordan, dissenting:

Sims
failed to contest an imminent danger order, and now asks the Commission to
allow it to challenge the appropriateness of that enforcement action. Because
Sims’ request came more than a year after the deadline for seeking review of
such order, making relief under F.R.C.P. 60(b)(1) inappropriate, and because it
failed to demonstrate “extraordinary circumstances,” deserving of relief under
F.R.C.P. 60 (b)(6), I would deny the motion.

MSHA
issued the imminent danger order on September 23, 2015. The order, written
because a truck driver failed to use fall protection, was terminated one minute
after it was issued (when the driver dismounted the crane on the truck to
ground level). Thereafter, Sims had 30 days in which to file a notice of
contest with the Commission. 30 U.S.C. § 817(e)(1); Commission Procedural Rule
22, 29 C.F.R. § 2700.22. It
failed to do so.

In
deciding whether “extraordinary circumstances” warrant relief in this case, it
is useful at the outset to explore the effect of the operator’s failure to
challenge MSHA’s enforcement action. Frankly one is hard-pressed to identify
many practical consequences. The order was terminated one minute after it was
issued and no penalty was assessed. [5]
Not surprisingly, the operator’s motion provides no reason why it will be
better off if the Commission awards the relief it seeks.

Importantly,
Sims has already challenged the citation that was issued in conjunction with
the imminent danger order. The citation alleged that Sims violated the standard
providing that fall protection be worn when persons work where there is a
danger of falling, and a penalty was assessed in conjunction with that MSHA
enforcement action.

A hearing was held, and on January 13, 2017, the Administrative
Law Judge issued a decision upholding the violation but deleting the
designation of “significant and substantial” and reducing the level of
negligence and gravity. He also reduced the penalty from the $270.00 proposed
by the Secretary to $100. 39 FMSHRC 116 (Jan. 2017). Sims filed a petition for
discretionary review of the Judge’s finding of a violation. The Commission
granted the petition, and the case is currently pending before us. [6]

Therefore, on the issue of whether MSHA properly
enforced the fall protection requirement, the operator has had the benefit of a
full due process hearing, and will ultimately have appellate review of the
Judge’s decision. This is in stark contrast to the usual default case involving
a motion under Rule 60, where the operator has not yet had its day in court and
the government is nonetheless in the position to collect a penalty.

Turning now to the operator’s request for relief, a
quick review of the Commission’s procedural rules would have demonstrated to
the operator that a formal filing of a Notice of Contest with the Commission
was necessary to contest the order. Rather than filing such pleading with the
Commission, Sims did nothing until December 2015, when it received a proposed
assessment from the Secretary on the related citation. It contested the penalty
linked to this citation by sending in a form to the Secretary, and in so doing
mistakenly believed it had effectively contested the imminent danger withdrawal
order. As the operator admits, the failure by Sims to properly contest the
imminent danger order “was the result of mistake, inadvertence, and/or
excusable neglect.” Mot. at 7. This, of course, tracks the language of Federal
Rule of Procedure 60(b)(1), on which Sims’ motion is based. The majority, in
turn, also acknowledges that “Sims’ failure could be characterized as a
‘mistake.’” Slip op. at 6, n.3.

However,
because Sims did not file its motion to reopen until December 2016, more than
one year after the imminent danger order should have been contested, relief
under Rule 60(b)(1) may not be granted. Fed. R. Civ. P. 60(c)(1); Slip op. at
4.

My colleagues look to a different provision in Rule
60 (one not relied on by Sims) to afford relief to the operator. Under Rule
60(b)(6), relief from a judgment or order may be granted for “any other reason
that justifies relief.” Such a motion need not be filed within one year from
entry of the order. However, it must be filed within a reasonable time. Fed. R.
Civ. P. 60(c)(1).

The
majority grants grant relief under the stringent test set forth by the
Commission and the federal courts when applying this provision. In Pioneer
Investment Serv. Co. v. Brunswick Assoc. Limited Partnership , 507 U.S. 380
(1993), the Supreme Court set forth the “extraordinary circumstances” standard
used in these cases:

To justify
relief under subsection (6), a party must show ‘extraordinary circumstances’
suggesting that the party is faultless in the delay. . . . If a party is partly
to blame for the delay, relief must be sought within one year under subsection
(1) and the party’s neglect must be excusable.

Id . at 393.

The Commission has also adopted the “extraordinary
relief” standard for 60(b)(6) cases. See Celite Corp ., 28 FMSHRC 105,
107 (Apr. 2006). My colleagues in the majority appear to agree that this is the
proper test. Slip op. at 6, n. 3.

Generally, to be eligible for relief under
60(b)(6), a party must be without fault:

In a vast
majority of the cases finding that extraordinary circumstances do exist so as
to justify relief, the movant is completely without fault for his or her
predicament; that is the movant was almost unable to have taken any steps that
would have resulted in preventing the judgment from which relief is sought.

12 James Wm.
Moore et al., Moore’s Federal Practice § 60.48[3][b] (3d ed. 2017).

The federal courts have also often emphasized that
Rule 60(b)(6) is utilized to prevent extreme hardship. See e.g. SEC v. North
American Clearing, Inc. , 656 Fed.Appx. 947, 949 (11th Cir. 2016) (holding
that relief under 60(b)(6) may be invoked only when an absence of relief will
result in “extreme and unexpected hardship”); Norris v. Brooks, 794 F.3d
401 (3rd Cir. 2015) (same).

Another black-letter law concept regarding Rule
60(b)(6) is that it cannot be used simply because a party has failed to meet
the one-year time limit for filing a motion to reopen under Rule 60(b)(1). Thus,
in John R. Sand and Gravel , 26 FMSHRC 403 (May 2004), we stated:

“[The] one-year
time limit is an outside time limit for motions requesting relief under
subsections (1) through (3), and may not be circumvented by utilization of
subsections (4) through (6) of Rule 60(b), which are subject only to a reasonable
time limit, when the real reason for relief falls within subsections (1)
through (3).”

Id . at 405. quoting
Lakeview Rock Products , 19 FMSHRC 26, 28-9 (Jan. 1999)

The
federal courts are in agreement:

Of particular
concern is that parties may attempt to use Rule 60(b)(6) to circumvent the
one-year time limitation in other subsections of Rule 60)(b). . . . Recognizing
this concern, we have found that Rule 60(b)(1) and Rule 60 (b)(6) are mutually
exclusive, such that any conduct which generally falls under the former cannot
stand as a ground for relief under the latter. Where a party’s Rule 60(b)
motion is premised on grounds fairly classified as mistake, inadvertence, or
neglect, relief under Rule 60(b)(6) is foreclosed.” [internal quotation marks
and citations omitted)]

Stevens v.
Miller ,
676 F.3d 62, 67 (2d Cir. 2012); see also Moore’s, § 60.48[2]; Brandon v.
Chicago Board of Education , 143 F.3d 293, 295-296 (7th Cir. 1998) (holding,
in a case where the clerk of the district court consistently sent court
mailings to an incorrect address, that the “unusual combination of error by the
Clerk’s office and neglect by the attorney” were covered by Rule 60(b)(1), and
that since (b)(1) applied, Rule 60(b)(6) did not).

In
short, this summary of Rule 60(b) jurisprudence indicates that the only way in
which Sims may be afforded relief is if the operator can (1) make a showing of
“extraordinary circumstances,” which includes proving that it was faultless,
(2) establish that a denial of relief will result in “extreme hardship,” and
(3) demonstrate that the reason it deserves relief does not fall under Rule
60(b)(1). A review of the record reveals that this burden was not met.     

The central
basis of the majority’s decision to grant relief is its attempt to transform
this garden-variety 60(b)(1) case into a (b)(6) proceeding by placing
responsibility squarely at the feet of the Secretary. The majority asserts
that, “[w]hat makes this case extraordinary, and therefore worthy of
consideration under Rule 60(b)(6), is that MSHA affirmatively endorsed the
operator’s stated misunderstanding.” Slip op. at 6. Despite the fact that the
burden in a Rule 60(b) case is on the operator to show that relief is
warranted, the bottom line here is that my colleagues reopen this proceeding
because MSHA did not tell Sims that it had not properly contested the issuance
of the withdrawal order. In effect they contend that this changes Sims’
acknowledged “mistake” into Rule 60(b)(6)-worthy conduct. The effect of
shifting this responsibility onto MSHA, is to potentially transform many future
60(b)(1) cases of operator mistake into (b)(6) proceedings (with no one-year
time limits) simply because MSHA fails to inform an operator about the problems
with its case.

My colleagues base their decision to grant relief
specifically on the grounds that the Secretary failed to tell the operator it
had erred and MSHA “prepared for the case as though it would involve the
imminent danger order.” Slip op. at 5-6. As noted above, however, it is not the
Secretary’s responsibility to tell the operator that it had failed to
effectively contest the order (although it is certainly appropriate for a
Solicitor to make this argument to a Judge). Moreover, the record does not
reflect how the Secretary “prepared for the case.” The penalty petition which
did not mention Order No. 882352 (because, of course, no penalty is assessed
for an imminent danger order), a notice of appearance and prehearing report are
the only pre-trial submissions from the Secretary.

The majority also faults the Secretary for referring
to the imminent danger order in its prehearing report. Slip op. at 6. But even
if the Secretary’s prehearing report created confusion regarding the validity
of the contest of the order, that confusion was short-lived, because three days
later (the next business day after the filing of the Secretary’s pre-hearing
report), during a conference call, both the Judge and the Secretary questioned
whether Sims had properly filed a contest. [7]

Thus the majority fails to make the case that
“extraordinary circumstances” exist and that the operator was faultless. It
provides no reason why this motion should not be considered under Rule 60(b)(1)
(and thus be ruled untimely).

Moreover,
the majority’s opinion directly conflicts with the Commission’s decision in Celite
Corp . That case involved a late-filed contest of a penalty and a motion to
reopen that was filed over a year after the order became final. There had been
a miscommunication between counsel for the operator and the Secretary, wherein
both apparently failed to realize that the only remedy available to Celite was
for the Commission to reopen the order that had gone final, subject to the time
limits of Rule 60(b). Celite Corp. , at 28 FMSHRC at 107. We denied
relief, explaining that “[t]his misunderstanding of well-established Commission
law cannot be grounds for relief under Rule 60(b)(6). Id . Instead, it is
an error that falls squarely within the ambit of Rule 60(b)(1).” We adopted the
identical rationale in Newmont USA Limited , 31 FMSHRC 808 (July 2009),
which involved a similar misunderstanding between the operator and the counsel
from the U.S. Department of the Treasury who handled the penalty collection
matter. [8]

Neither
Sims nor the majority argue that a denial of the motion to reopen will result
in “extreme hardship,” the final factor that must be demonstrated to obtain
relief under Rule 60(b)(6)). This is not surprising since, as noted above, the
imminent danger order was instantly terminated, and no penalty was assessed.

In
conclusion, the majority has failed to demonstrate that Sims’ mistake in not
following our procedural rules and filing a proper notice of contest of the
imminent danger order rises to the level of “extraordinary circumstances.” It
has also failed to show why the case should not be considered under Rule
60(b)(1). Finally, there is absolutely no showing of hardship to the operator
if its motion is denied, since the order was terminated long ago and no
allegation of harm has been presented.

By re-opening this matter and sending it back to the
Judge (who as previously noted issued his decision on the related citation on January
13, 2017, a decision currently on appeal before us), the majority disregards
longstanding Commission and court precedent in this area to reach an outcome
that ultimately will have no practical significance. Accordingly, I
respectfully dissent.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

Distribution:

W.
Ben Hart, CMSP

W.
Ben Hart & Associates

2916
East Park Avenue

Tallahassee,
Florida 32301

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] 30 C.F.R § 56.15005
provides: “[s]afety belts and lines shall be worn when persons work where there
is danger of falling; a second person shall tend the lifeline when bins, tanks,
or other dangerous areas are entered.”

[2] We have elected
to proceed pursuant to Rule 60(b) in this case because the Commission has, in
previous cases, considered imminent danger orders as though they are “final.” See,
e.g., ACI Tygart Valley , 38 FMSHRC 939 (May 2016). However, it is
not certain that the order in this case was “final” in the fatal, legal sense
applied to penalties issued pursuant to section 105(b). Unlike that section,
section 107 does not contain a clause explicitly rendering an uncontested order
a “final order.” We believe that treating all penalties and orders as “final”
is the better practice and is more consistent with the structure and language
of the Act. But the fact that even the Secretary acted as though the imminent danger
order remained a viable issue in the case, up until the latter stages of
pretrial preparation, certainly renders this case “extraordinary.”

[3] Sims’ failure to
contest this issuance here could be characterized as a “mistake.” As noted
above, mistake is one of the discrete reasons for relief listed in Rule
60(b)(1), which is subject to the one-year rule in Rule 60(c). However,
assuming it was a mistake, it was a mistake accompanied by extraordinary
circumstances. In Master Products , we held that the Rule 60(b)(6) catchall
provision could be used to reopen a default judgment over a year old, even if
it was the result of “mistake,” provided extraordinary circumstances existed. 33
FMSRC at 648-49. In reaching that conclusion, we cited the view of Rule
60(b)(6) taken by federal courts as summarized in 11 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure    § 2864 (2d ed. 2010), which
allows for such treatment. We also noted the Seventh Circuit’s decision in Lowe
v. McGraw-Hill Cos., Inc. , 361 F.3d 335 (7th Cir. 2004), in which the Court
set aside a default over a year after the judgment pursuant to Rule 60(b)(6)
when the default occurred because of a “mistake.” We continue to follow that
guidance under the exceptional circumstances presented here.

[4] Our dissenting
colleague states that reopening this Order will serve no purpose. Slip Op. at 8.
We do not agree. MSHA alleged a serious violation – the occurrence of an
imminent danger. A section 107(a) violation is an “elevated” order for purposes
of the Pattern of Violation Screening Criteria. Pattern of Violation Screening
Criteria -2014, https://arlweb.msha.gov/pov/POVScreeningCriteria2014.pdf (last
visited June 21, 2017). Standing alone, that is significant. Further, it is
impossible to predict how the occurrence of such a violation might affect
interests of the charged entity in other areas such as insurance and other
litigation. Finally, a person charged with a serious violation of law must have
a fair opportunity to contest such a charge. Absent reopening, the events
connected with this violation would effectively deprive the operator of such an
opportunity despite its clear intention to do so and its good faith and
understandable belief that the agency also considered its challenge to be
pending before the Commission.

[5] The operator
acknowledges that no penalties are assessed for imminent danger orders. Motion
to Reopen, Declaration of W. Ben Hart at 2.

[6] Thus the effect
of the majority’s decision to grant the motion to reopen is that part of this
docket will be remanded to the administrative law judge (on the merits of the
imminent danger order) while the other part of the docket (regarding the
validity of the citation) will be before the Commission on appeal. This type of
inefficient piecemeal litigation has the potential to create confusion. See
Eagle Energy, Inc. v. Secretary of Labor , 240 F.3d 319, 325 (4th Cir. 2001)
(refusing to hear operator’s appeal when the Secretary’s appeal was still
pending before the Commission).

[7] The majority
also states that the operator is entitled to relief because it acted diligently
and pursued its claim rigorously (for instance, it participated in pre-hearing
procedures and filed updates to the court). Slip op. at 5-6. However, an
operator’s responsible litigation of its case has little or nothing to do with
whether “extraordinary circumstances” exist to warrant relief under Rule
60(b)(6) and does not remove its actions from the purview of Rule 60(b)(1).

[8] Master
Products , 33 FMSHRC 645 (Apr. 2011), on which the majority relies, is
distinguishable from the instant case. In Master Products (a case in
which I dissented), the operator mailed a penalty contest to the wrong MSHA
office, but MSHA verbally confirmed that it had received the contest. Id .
at 650. The majority in Master Products concluded that the operator
failed to take action within one year of the order becoming final because it
reasonably believed none was needed due to the agency’s silence and earlier
representations. Id . at 651. Here, nothing occurred within one year of
the imminent danger order becoming final that would have led Sims to reasonably
believe it had filed a valid contest. MSHA certainly never verbally confirmed
that it had and, as demonstrated above, even a cursory reading of our
procedural rules would have disabused Sims of the notion that it had properly
filed a notice of contest of the imminent danger order with the Commission. (The
Secretary’s pre-hearing report, on which the majority relies, was filed after
the one year period had passed, and, as noted above, any influence it might
have had on Sims’ belief that it had properly contested the order must have
been fleeting, because on the next business day both the Judge and the
Secretary raised the possibility that the contest had not properly been filed).