Secretary of Labor v. Croell, Inc.

Plain-English summary

Croell intended to contest two citations but mailed the contest form with payment for four uncontested citations to MSHA's St. Louis lockbox instead of the contest office. It sent the paperwork about three weeks before the deadline and moved to reopen about three weeks after receiving a delinquency letter. The Secretary did not oppose and noted that Croell had no prior late contests or delinquent penalties. The majority found inadvertence and good faith, reopened the assessment, and remanded it. Commissioner Marvit dissented because he believes the Commission lacks reopening authority.

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: A first-time address mistake, timely mailing, clean history, and prompt motion supported reopening.

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. 

CROELL,
INC.

Docket
No. WEST 2024-0333

A.C.
No. 48-01698-601070 

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 September 17, 2024, the Commission received
from Croell, Inc. (“Croell”) 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 proposed assessment was delivered on June 12, 2024, and
became a final order of the Commission on July 12, 2024. A delinquency letter
was sent to the operator on August 27, 2024.

Croell asserts that it intended to contest
two of the six citations contained in the proposed assessment, but mistakenly
mailed the paperwork to the wrong address. Contest paperwork must be mailed to
MSHA’s Civil Penalty Compliance Office in Arlington, Virginia, while payments
for uncontested citations must be mailed to MSHA’s Lock Box in St. Louis,
Missouri. On June 24, 2024, Croell mistakenly mailed its contest paperwork to
the St. Louis address, along with its payment for the four uncontested
citations. After receiving the delinquency letter, the operator realized its
error and moved to reopen the final assessment.

The Secretary does not oppose the request
to reopen, and notes that the operator has no previous history of untimely
contests or delinquent penalties. However, the Secretary notes that the
instructions provided with every proposed assessment clearly state that contest
forms must be sent to the Civil Penalty Compliance Office, and urges the
operator to take steps to ensure future penalty contests are properly filed.

We note that Croell clearly attempted to
timely contest the proposed assessment. The contest form was mailed on June 24,
2024, approximately three weeks before the assessment became final. While the
operator mailed its contest form to the wrong address, this appears to be the
operator’s first such error. We also note that Croell timely moved to reopen
the assessment approximately three weeks after receiving the delinquency
letter. Highland Mining Co. , 31 FMSHRC 1313, 1316-17 (Nov. 2009) (motions
received within 30 days of an operator’s first notice from MSHA that it has
failed to timely file a notice of contest have presumptively been filed within
a reasonable amount of time).

Having
reviewed Croell’s request and the Secretary’s
response, we find that Croell’s failure to timely contest the assessment
was the result of inadvertence. We also note that the operator acted in good
faith by timely filing its request to reopen. 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 , 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:

Bill
Baxendale

EHS
Coordinator

Croell
Inc.

230
Croell Dr., PO Box 1352

Sundance,
WY 82729

[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
N4420-N4430  

Washington, DC 20210  

[email protected]  

Emily O. Roberts, Esq.

Division of Mine Safety and
Health

Office of the Solicitor

200 Constitution Avenue NW Suite
N4420 – N4430

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]