Secretary of Labor v. CalPortland

Plain-English summary

CalPortland misread the 30-day contest deadline as 30 business days. It filed its reopening motion on the thirtieth business day after receiving the assessment, which was 12 days after the assessment became final. The Commission found that timing consistent with the company's explanation and that the reopening request itself was prompt. The Secretary did not oppose relief. The Commission found good cause and good faith, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: A documented calendar-versus-business-day mistake may be excused when the operator acts promptly and consistently with its explanation.

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.

CALPORTLAND

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Docket
No. WEST 2023-0240

A.C.
No. 04-00036-573596

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

ORDER

BY THE COMMISSION:

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On May 16, 2023, the Commission received from CalPortland
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 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 on April 4, 2023, and became a final order of the Commission on May
4, 2023.

As stated, after receiving a proposed
assessment, an operator must contest the proposed assessment with the Secretary
of Labor within 30 days. CalPortland asserts that it misinterpreted the 30-day
deadline for contests set forth above as 30 “business” days. Therefore,
CalPortland failed to take action within the deadline, resulting in the
proposed assessment becoming a final order. CalPortland filed a motion to
reopen the final order on May 16, 2023, 30 business days after receiving the
assessment. The Secretary of Labor does not oppose the request to reopen.

CalPortland filing the motion to reopen on
the 30th business day after receiving the assessment is consistent with, and
fully supports, its explanation that it was waiting until the 30th business day
to take any action regarding the assessment. Furthermore, we note that the
motion to reopen was timely filed. 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 motion to reopen was filed on May 16,
2023, 12 days after the proposed assessment became a final order. Therefore,
the motion to reopen was filed within a reasonable amount of time.

Having
reviewed CalPortland’s request and the
Secretary’s response, we find that CalPortland demonstrated good cause
for its failure to timely respond, and acted in good faith. 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

John
Vernon

Safety
Manager

Mojave
Cement Plant, CalPortland

9350
Oak Creek Road

Mojave,
CA 93501

[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]