Secretary of Labor v. Mitsubishi Cement Corporation

Plain-English summary

Mitsubishi prepared two similar packages containing its contest form for 13 citations. One package also held the payment check and went to MSHA's St. Louis lockbox, while the other held a check copy and was sent to Arlington, but MSHA did not receive the Arlington contest. The Secretary did not oppose and cited the operator's initiative and payment history. The majority found good faith, reopened the assessment, and remanded it for penalty proceedings. 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: Confusion from two nearly identical payment-and-contest packages supported reopening when the operator acted in good faith.

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.

MITSUBISHI
CEMENT CORPORATION

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Docket
No. WEST 2024-0268

A.C.
No. 04-00157-595053

BEFORE: Jordan,
Chair; Baker and Marvit, Commissioners

ORDER

BY: Jordan, Chair,
and Baker, Commissioner

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On June 13, 2024, the Commission received from
Mitsubishi Cement Corporation (“Mitsubishi”) 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).

Records of the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) indicate that Mitsubishi received an
assessment proposing penalties for 21 citations and orders on March 11, 2024. On
April 2, 2024, MSHA deposited a partial payment from Mitsubishi for penalties
associated with 8 of the 21 citations. The proposed penalty assessment for the
remaining 13 citations became a final order of the Commission on April 10, 2024.
On May 28, 2024, MSHA sent Mitsubishi a delinquency letter.  

Mitsubishi claims that on
approximately March 25, 2024, the operator’s Safety Superintendent mailed two
packages to MSHA. The operator explains that it marked the penalties of 13
citations and orders as contested on the assessment form and included the form
in both packages. MTR at 5. In addition, it issued a check in the amount of
$1,268 for eight penalties it was paying. Mitsubishi placed the actual check in
one package, and a copy of the check in the second package. Id. at 2, 5.
The operator explains that the package with the actual check was sent to MSHA’s
Lock Box in St. Louis, Missouri, while the package with the copy of the check
was sent to MSHA’s address in Arlington, Virginia.

The Secretary does not oppose
the motion to reopen. She states that MSHA did not receive a copy of
Mitsubishi’s Notice of Contest at its office in Arlington, Virginia. The
Secretary further submits that “Mitsubishi’s Notice of Contest was in the same
package as the issued check for the 8 uncontested citations which were sent to
MSHA’s St. Louis, Missouri Lockbox,” and concludes that Mitsubishi sent its
payment and Notice of Contest by mistake to MSHA’s Lockbox. Resp. at 2. The
Secretary explains that she does not oppose the motion to reopen because
Mitsubishi took the initiative to address MSHA’s non-receipt of its contest and
has a “respectful payment history with MSHA.” Id.

As the Commission has
previously recognized, payments for uncontested citations must be mailed to
MSHA’s address in St. Louis, while contests of proposed assessments must be
mailed to MSHA’s address in Arlington. Westmoreland Absaloka Mining, LLC ,
45 FMSHRC 818, 819 (Sept. 2023). Here it appears that Mitsubishi prepared two
packages that included copies of its contest of proposed assessments. One
package also included a check for uncontested citations, and that package was
mailed to St. Louis. The other package included the contests and a copy of the
check, and that package was sent to Arlington. The operator’s filing of nearly
identical packages may have “confused MSHA’s system.” See, e.g., Giant
Cement Co. , 46 FMSHRC 305, 306 (May 2024). In any event, it appears that
the operator’s contest package was not received by MSHA in its Arlington
office.

Upon consideration
of the filings, including the Secretary’s non-opposition , we find that Mitsubishi acted in good faith. See, e.g.,
DeAtley Crushing Co. , 46 FMSHRC 632, 633 (Aug. 2024) (finding that good
faith and timeliness supported reopening).

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, Inc. , 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:

William
K. Doran, Esq.

Zachary
T. Byers, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

1909
K Street, N.W., Suite 1000

Washington,
DC 20006

[email protected]

[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 20004-1710

[email protected]