Secretary of Labor v. Kiewit Mining Group (Commission decision, August 21, 2023)

Plain-English summary

Kiewit Mining Group asked to reopen two penalty assessments that became final after packages sent to its designated post office were returned unclaimed. Kiewit could not identify why the packages were missed, but said an employee normally collected mail twice each week and that the company had no history of late contests. After receiving delinquency notices, Kiewit contacted MSHA, obtained copies of the assessments, and filed its motions within a reasonable time. The Commission majority found an excusable mistake that did not show an unreliable mail system and reopened both matters for further proceedings. Commissioner Baker would have denied reopening in one docket because Kiewit had paid that assessment.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.12, and 2700.28
• Outcome: Both assessments were reopened and remanded to the Chief Administrative Law Judge.
• Key point: A normally reliable mail system, a clean filing history, and prompt action after notice can establish excusable mistake when assessment packages go uncollected.

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.

KIEWIT
MINING GROUP

:

:

:

:

:

:

:

Docket
No. WEST 2023-0051

A.C.
No. 10-02177-557454

Docket
No. WEST 2023-0053

A.C.
No. 10-02177-559239

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

ORDER

BY:
Jordan, Chair; Althen and Rajkovich, Commissioners

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On November 30, 2022, the Commission received from Kiewit Mining Group (“Kiewit”) two motions seeking to reopen penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

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).

Kiewit explains that all correspondence
for the mine is automatically routed to the Post Office in Soda Springs, Idaho, where it is held for twice-weekly pickup by a mine employee.

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) and the U.S. Postal Service indicate the assessment in Docket No. WEST 2023-0051 was available for pickup at the Soda Springs Post Office on June 30, 2022, and the assessment in Docket No. WEST 2023-0053 was available for pickup on July 25, 2022. The assessments were returned to the Secretary as unclaimed approximately two weeks later. The assessments became final orders of the Commission on August 1, 2022, and August 24, 2022, respectively. [2]

Delinquency notices were sent to the
operator on October 11 and November 4, 2022.  On November 7, Kiewit reached out to MSHA for more information regarding the status of assessments. MSHA provided the operator with the USPS delivery date information and copies of the assessments on November 15, and Kiewit filed its motions to reopen on November 30.

Kiewit was unable to identify the specific
cause of the failure to collect the assessment packages. However, the operator assures the Commission that its office procedures are normally reliable and that the Post Office is routinely checked twice a week. Kiewit notes that it has never before been untimely in filing a notice of contest. The Secretary does not oppose the operator’s requests to reopen.

In light of Kiewit’s history, we find that
this mistake does not indicate an inadequate processing system, and is unlikely to recur. We also note that the operator followed up with MSHA and filed its motions to reopen within a reasonable amount of time. [3] We also recognize that mail delivery during the relevant period was affected by the unprecedented strain of the COVID 19 pandemic. Having reviewed Kiewit’s requests and the Secretary’s responses, we find that the operator’s failure to timely file was the result of excusable mistake.

In the interest of
justice, we hereby reopen these matters and remand them 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

Commissioner
Baker, dissenting in part:

In
this case, Kiewit failed to timely contest the proposed penalty at issue in Docket No. WEST 2023-0051, and then paid the amount owed. For the reasons set forth in my dissent in Omya Inc. , 45 FMSHRC __, 2023 WL 2559811 (Mar. 9, 2023), I do not believe it is accurate to characterize this action as a justifiable mistake or excusable neglect.

Therefore, I would
deny Kiewit’s motion to reopen with respect to Docket No. WEST 2023-0051.

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Eric
Lauck, Safety Manager

Kiewit
Mining Group

3826
Blackfoot River Road

Soda
Springs, ID 83276

[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

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]

[1] For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket numbers WEST 2023-0051 and WEST 2023-0053 because they involve similar factual and procedural issues. 29 C.F.R. § 2700.12.

[2] The Commission
has previously found motions to reopen to be moot where an operator never received the relevant assessment. E.g. , Delhur Industries, Inc. , 43 FMSHRC 396 (Aug. 2021). While the assessments at issue here technically never reached the operator’s property, we find this case to be distinguishable. The assessments reached the operator’s designated location for all mail delivery, akin to a P.O. Box or off-site office.

[3] The Commission
has previously 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 operator was provided with the USPS records and copies of the citations on November 15, 2022, and the motions to reopen were filed on November 30, 2022.