Secretary of Labor v. Wyo-Ben, Inc.

Plain-English summary

Wyo-Ben timely contested a citation but could not locate the later penalty assessment, which postal records showed had been retrieved from its address. When the expected assessment still had not surfaced, the vice president proactively checked MSHA's database and discovered that it had become final. The company searched for the document and promptly sought reopening. Although the Secretary argued that losing a delivered assessment showed an unreliable process, the Commission credited the self-audit, timely citation contest, and absence of prior late contests. It reopened and remanded the assessment, with one Commissioner dissenting.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The penalty assessment was reopened and remanded for further proceedings.
• Key point: A proactive database check and prompt motion can demonstrate good-faith mistake even when a delivered assessment cannot be found internally.

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.
WYO-BEN, INC. |
|
|
Docket No. WEST 2023-0320[1] A.C. No. 48-00612-577272
|

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

ORDER

BY: Rajkovich, Chair, Jordan and Baker, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act”). On July 20, 2023, the Commission received from Wyo-Ben, Inc., 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 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).

Here, the underlying citation at issue was timely contested on April 26, 2023, and the contest proceeding was docketed before the Commission (Docket No. WEST 2023-0212). Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed penalty assessment for the citation was subsequently delivered to the operator on May 22, 2023, and became a final order of the Commission on June 22, 2023.

According to Wyo-Ben, proposed penalty assessments are normally received by the operator’s Vice President of Operations and forwarded to outside counsel. The operator asserts that, when it appeared the penalty assessment for the contested citation had not yet arrived by mid-July, the Vice President checked MSHA’s Mine Data Retrieval System (“MDRS”) and learned that the assessment had already become final. The Vice President and outside counsel looked for the assessment but were unable to locate it, or to determine where or how it had been delivered. The Secretary opposes the request to reopen. She notes that the assessment was both delivered to and retrieved from the operator’s address of record, and asserts that the operator’s inability to explain what happened to the assessment after retrieval indicates an inadequate or unreliable internal processing system.

Having reviewed Wyo-Ben’s
request and the Secretary’s response, we find that the operator has
demonstrated that its failure to timely file a contest of the proposed penalty
was the result of a mistake. The operator demonstrated that the mistake was
made in good faith by proactively reviewing MSHA’s MDRS and promptly moving to
reopen upon discovery of the error.[2]
The operator was also timely in its filing of a notice of contest of Citation
No. 9721410, and has no history of untimely contests. 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/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/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 orders 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

Littler Mendelson

815 Connecticut Ave 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 N4428

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 20004-171

[email protected]

[1]
Corrected Docket No. from WEST 2023-0230 to WEST 2023-0320

[2] 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 of a proposed civil penalty 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 proposed penalty
assessment became a final order of the Commission on June 22, 2023, and the
operator filed its motion to reopen on July 20, 2023.