Secretary of Labor v. Kiewit Mining Group

Plain-English summary

The Postal Service could not deliver Kiewit's proposed assessment because the company had moved without leaving a forwarding address. Kiewit cited a corporate-office miscommunication but did not say when the move occurred or explain why repeated quarterly prompts had not led it to update its MSHA address. The Secretary opposed reopening. The Commission found the explanation too vague and indicative of an inadequate internal process, so it denied the motion. Commissioner Marvit concurred in denial while repeating his view that the Commission lacks reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: An operator must promptly maintain its MSHA address and specifically explain any lapse that caused nondelivery.

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 2024-0270

A.C.
No. 50-02102-598220

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 18, 2024, the Commission received from
Kiewit Mining Group (“Kiewit”) 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 the U.S. Postal Service attemped delivery of the Proposed Penalty
Assessment to Kiewit on April 29, 2024, but the mail was marked undeliverable
as Kiewit had moved and left no forwarding address. The proposed assessment
became a final order of the Commission on May 29, 2024.

Kiewit
argues that it failed to timely contest the proposed penalties because it did
not receive the proposed penalty assessment. It explains that its failure to
receive the assessment was due to a miscommunication regarding when the
operator’s corporate office changed locations. The operator’s project safety
manager states that when he realized that the citations had become final, he
immediately contacted an MSHA District Office. When he failed to receive the
assessment information from the MSHA District Office, he contacted MSHA’s Civil
Penalty Compliance Office. On June 5, 2024, MSHA’s Civil Penalty Compliance
Office informed the operator that the penalties had become final orders, and
Kiewit filed a motion to reopen. The project manager explains that since March
2024 when he became employed with the operator, he has been tracking violations
to ensure that appropriate and timely actions are taken.

The
Secretary opposes the motion to reopen. [1]
She submits that the proposed assessment was sent to the operator’s address of
record, and that a failure to update an address of record is not good cause for
reopening. The Secretary notes that the operator sought to change its address
of record with MSHA on June 7, 2024, two days after the date of its motion to
reopen. He asserts that Kiewit has provided no explanation for when its
headquarters moved or why it failed to communicate its new address to MSHA in a
timely manner. The Secretary argues that Kiewit’s failure to provide an
explanation of the problem that had occurred indicates that its internal
processing system is inadequate or unreliable. She emphasizes that when filing
its quarterly coal production and employment records since 2010, Kiewit did not
update its address of record although it was prompted to do so as part of the
filing process.

A party seeking to reopen a final penalty
bears the burden of showing that it is entitled to such relief, through a
detailed explanation of its failure to timely respond. Revelation Energy,
LLC , 40 FMSHRC 375, 375-76 (Mar. 2018). General assertions or conclusory
statements are insufficient. Southwest Rock Prod., Inc. , 45 FMSHRC 747,
748 (Aug. 30, 2023); B & W Res., Inc ., 32 FMSHRC 1627, 1628 (Nov.
2010). At a minimum, the applicant must provide all known details, including
relevant dates and persons involved, and a clear explanation that accounts, to
the best of the operator’s knowledge, for the failure to submit a timely
response. Higgins Stone Co. , 32 FMSHRC 33, 34 (Jan. 2010). Here, Kiewit
provides vague statements about a miscommunication regarding when its corporate
office changed locations, without identifying when the corporate office moved
or any actions taken to update its address of record at that time.

As the Secretary stated, Kiewit was
prompted to update its address of record each time it filed its quarterly coal
production and employment reports. Sec’y Amended Opp’n at 11-13. The Commission
has observed that a repeated failure by an operator to update its address of record
could indicate an inadequate internal processing system. See ITAC , 46
FMSHRC 80, 81 (Feb. 2024) (“[A] repeated failure to update one’s address of
record would indicate an inadequate internal process and may result in future
motions to reopen being denied.”), appeal docketed , No. 24-1058 (D.C.
Cir. Mar. 11, 2024); Dyno Nobel , 46 FMSHRC 397, 398 (June 2024) (same), appeal
docketed , No. 24-1236 (D.C. Cir. July 10, 2024). The Commission has
made it clear that where a failure to contest a proposed assessment results
from an inadequate or unreliable internal processing system, the operator has
not established grounds for reopening the assessment. Shelter Creek Capital,
LLC , 34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC , 33
FMSHRC 103. 104 (Feb. 2011).

Having reviewed Kiewit’s request and the
Secretary’s response, we find that the operator has not provided sufficient
explanation to justify reopening. Accordingly, we deny Kiewit’s motion.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, concurring:

I write to agree 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.” Belt Tech, Inc ., 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 operator received the final order. The Majority denies reopening
in its opinion because the operator has not alleged good cause or provided a
factual accounting for its failure to timely contest the penalties. Though I
believe the Commission lacks the authority to consider motions to reopen, I
concur with the Majority in denying reopening in this matter.

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Thomas
S. Rheude ASP, CHST

Project
Safety Manager

Kiewit
Mining Group

P.O.
Box 309

Tok,
AK 99780

[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]

[1] The Secretary
filed an unopposed motion for an extension of time to file her opposition. We
hereby grant the motion.