Secretary of Labor v. Potter South East, LLC

Plain-English summary

Potter South East sought to reopen five assessments covering 62 citations after MSHA had issued delinquency notices. Its brief filing said the total penalty was a surprise and that the company had implemented corrective procedures, but it did not explain the missed contest deadlines or the later delay in requesting relief. The Secretary opposed reopening and reported that Potter filed shortly after receiving notice of an outstanding balance of $51,815.26. The Commission found the motion deficient because it lacked detailed facts and a recognized ground for relief. It also found that the motions for two assessments were filed more than one year after the final orders, and denied all five matters with prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Reopening was denied with prejudice in all five consolidated cases.
• Key point: A reopening motion must account for both the original missed deadline and any later delay, and mistake-based relief cannot be sought more than one year after finality.

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,                           :           Docket No. SE
2022-0204

MINE SAFETY AND HEALTH                   :           A.C. No. 40-03530-525097

ADMINISTRATION (MSHA),                  :

:           Docket
No. SE 2022-0205

:           A.C. No. 40-03530-528220

:

v.                                             :           Docket No. SE
2022-0206

:           A.C. No. 40-03530-540011

:

:           Docket No. SE 2022-0207

POTTER SOUTH EAST, LLC,                     :           A.C. No. 40-03530-541838

:

:           Docket No. SE 2022-0208

:           A.C. No. 40-03530-543535

:

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

ORDER

BY THE COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). [1]
On September 1, 2022, Potter South East, LLC, filed a motion to reopen the five
captioned cases which had become final orders 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).

Potter
filed a pro se motion to reopen the proceedings which simply states: “[t]he amount of the assessment penalty was a total
surprise to us, as we have implemented procedures to prevent and correct every
situation that may have resulted in a citation.”  Mot. at 1.

The Secretary of Labor filed
a motion in opposition, arguing that Potter’s motion fails to fulfill its
burden to explain why it did not timely contest the penalties and to explain
its delay in seeking reopening after receiving delinquency notices. [2]
In fact, the Secretary represents that Potter only filed the motion to reopen
shortly after receiving the Secretary’s scofflaw notice that it had an
outstanding balance of $51,815.26 in unpaid penalties, interest and
administrative costs. Sec’y Mot. at 7 (Attachment H, August 8, 2022).

The Commission requires that,
at a minimum, a motion to reopen “must provide all known details, including
relevant dates and persons involved, and a clear explanation that accounts, to
the best of the operator’s knowledge, for the failure to submit a timely
response and for any delays in seeking relief once the operator became aware of
the delinquency or failure.” Noranda Alumina, LLC, 39 FMSHRC 441, 443
(Mar. 2017) (citing Higgins Stone Co ., 32 FMSHRC 33, 34 (Jan. 2010).

Potter’s terse motion is deficient as it neither alleges good cause
for reopening under Rule 60(b) nor provides a factual accounting for Potter’s
failure to timely contest the penalties. See,
e.g. , Copenhaver Constr., Inc .,
43 FMSHRC 113 (Mar. 2021) (denying a motion as “deficient on its face” because
it did not assert a reason justifying relief pursuant to Rule 60(b)). [3]  

Finally , with respect to the assessments associated with
Docket Nos. SE 2022-0204 and SE 2022-0205, the motion to reopen was filed more
than one year after the final order was entered.   Under Rule 60(c)(1) of the Federal Rules of Civil
Procedure, any motion for relief from a final order pursuant to Rule 60(b) must
be made within a reasonable time, and in the case of mistake, inadvertence, or
excusable neglect not more than one year after the order was entered. See,
e.g. , Carmeuse Lime & Stone , 33 FMSHRC 1783, 1784 (Aug. 2011).

For
all the aforementioned reasons, Potter’s motion is DENIED with prejudice.

/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:

Dwayne Potter

Owner

Potter South East, LLC

P.O. Box 244

Huntsville, TN 37756

[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]

[1] The Commission hereby consolidates these captioned
matters pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12.

[2] The Secretary
of Labor represents that a total of 62 citations and penalties are at issue in
the captioned cases. Proposed Assessment Number 000525097 (SE 2022-0204) concerns
11 citations and became a final order on December 18, 2020. On February 2,
2021, MSHA sent Potter a delinquency notice for the penalties. On June 23,
2021, MSHA received payment from Potter which it applied to the citations at
issue.

Proposed Assessment Number
000528220 (SE 2022-0205) concerns nine citations and became a final order on
February 18, 2021. MSHA sent Potter a delinquency notice on April 6, 2021.

Proposed Assessment Number
000540011 (SE 2022-0206) concerns two citations and became a final order on
October 12, 2021. MSHA sent Potter a delinquency notice on November 30, 2021.

Proposed Assessment Number
000541838 (SE 2022-0207) concerns 23 citations and became a final order on
November 9, 2021. MSHA sent Potter a delinquency notice on December 28, 2021.  

Proposed Assessment Number
000543535 (SE 2022-0208) concerns 17 citations and became a final order of the
Commission on December 7, 2021. MSHA sent Potter a delinquency notice on January
25, 2022.  

[3] Furthermore, it is well recognized that a movant’s
good faith or lack thereof is an important factor in determining whether good
cause exists to reopen a final order. See, e.g. , Stone Zone , 41
FMSHRC 272, 274 (June 2019) (citations omitted). Some of the factors relevant
to the good faith analysis are the number of delinquent penalties outstanding,
the period of time the delinquent penalties accrued, and the seriousness of the
citations underlying the aforementioned penalties. Kentucky Fuel Corp .,
38 FMSHRC 632, 633 (Apr. 2016); see also Oak Grove Res. LLC , 33 FMSHRC
1130, 1132 (June 2011).