Secretary of Labor v. Cook Stone Company, LLC

Plain-English summary

Cook Stone promptly sent its assessment to outside counsel with instructions to contest it. An attorney confused the assessment with another operator's matter and mistakenly reported that Cook Stone's contest had been filed. Cook Stone had already filed pre-penalty contests for the five citations and moved to reopen ten days after MSHA sent a delinquency notice. Despite the Secretary's opposition, the majority found a good-faith effort and mistake, reopened the assessment, and remanded it. Commissioner Marvit dissented because he believes the Commission lacks authority to reopen section 105(a) final orders.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The penalty assessment was reopened and remanded, over one Commissioner's dissent.
• Key point: Documented counsel miscommunication, prior citation contests, and prompt action supported relief from a missed penalty contest.

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.

COOK
STONE COMPANY, LLC

Docket
No. SE 2024-0152

BEFORE: 
Jordan, Chair; Baker and Marvit, Commissioners

ORDER

BY: Chair Jordan
and Commissioner Baker 

This case arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On May
13, 2024, the Commission received from Cook Stone Company (“Cook Stone”) 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 section 105(a) orders, the Commission
has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under
which, for example, a party could be entitled to relief from a final order of
the Commission on the basis of mistake, inadvertence, or excusable neglect. 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).

MSHA's records indicate that the proposed
assessment was delivered on or around January 25, 2024, and became a final
order of the Commission 30 days later when it was not contested by the
operator. MSHA sent the operator a delinquency notice on May 3, 2024. 

The
Secretary opposes Cook Stone’s request to reopen, arguing that the operator
failed to establish good cause for its failure to timely file. According to the
Secretary, the operator’s failure to timely file was the result of inadequate
or unreliable internal procedures.

Cook Stone maintains that it timely forwarded
the proposed assessment to outside counsel on January 25, 2024, with a request to
contest it. Cook Stone represents that counsel’s office neglected to file the
form as a result of an intra-firm communication error. Specifically, as
demonstrated in the emails attached to its motion, an attorney in the office
confused Cook Stone’s assessment with the assessment of a separate operator. She
mistakenly represented that she had filed to contest Cook Stone’s assessment
when she had not. CS Ex 1, 2. Due to this miscommunication, Cook Stone’s
contest was not timely filed.

Prior to receiving the proposed
assessment, Cook Stone filed pre-penalty notices of contest for the five
citations at issue (Docket Nos. SE 2024-0052, SE 2024-0053, SE 2024-0054, SE
2024-0055 and SE 2024-0056), indicating an intent to contest the proposed civil
penalties.

Furthermore, the Commission has held that
“[m]otions to reopen received within 30 days of an operator's receipt of its
first notice from MSHA that it has failed to timely file a notice of contest
will be presumptively considered as having been filed within a reasonable
amount of time.” Highland Mining Co ., 31 FMSHRC 1313, 1316-17 (Nov.
2009). Here, the motion to reopen was filed ten days after MSHA sent the
operator a delinquency notice.

Having reviewed Cook Stone’s request and
the Secretary's response, we find that Cook Stone made a good faith effort to timely
file and that its failure to file was the result of a mistake. 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/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, dissenting :

I write to disagree with the Majority in
this case for the reasons set forth below.

In Explosive Contractors , 46 FMSHRC
965 (Dec. 2024), I dissented and explained that Congress did not grant the
Commission the authority to reopen final orders under section 105(a) of the
Mine Act. The Commission’s repeated invocation of Federal Rule of Civil
Procedure 60(b) cannot overcome the statutory language. However, in Belt
Tech , I explained in my concurrence that “the Act clearly states that to
become a final order of the Commission, the operator must have received the
notification from the Secretary.” 46 FMSHRC 975, 977 (Dec. 2024) (citing
Hancock Materials, Inc. , 31 FMSHRC 537 (May 2009)). Taken together, these
opinions stand for the proposition that the Commission may not reopen final
orders under its statutory grant, but an operator may proceed if it has not
properly received a proposed order.

In the instant case, as the Majority
recounts, the Commission’s order became final under the language of section
105(a). The Majority, however, votes to reopen the case. The Mine Act has not
granted us authority to reconsider final orders of the Commission as I set out
more fully in Explosive Contractors . To the contrary, it has limited our
authority to do so. Therefore, I respectfully dissent and would deny reopening.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Adele
L. Abrams, Esq., ASP, CMSP

Law
Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

[email protected]

Adele
Abrams, Esq.

Littler
Mendelson P.C.

815
Connecticut Avenue NW, Suite 400

Washington,
DC  20006

[email protected]

Thomas
A. Paige, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite N4420-N4430

Washington,
DC 20210

[email protected]

Melanie
Garris  

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]