Secretary of Labor v. Staker & Parson Companies

Plain-English summary

Staker & Parson timely contested 27 of 28 citations but later said it had intended to contest the omitted order too. Its assessment form did not select the contest-all option, and two separate citation lists in its cover letter also omitted the order. The operator additionally waited more than two months after a delinquency notice and did not explain when it discovered the problem or why it delayed. The Commission found no objective indication of an intent to contest the order and denied reopening over the Secretary's opposition. Commissioner Marvit concurred 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 omitted order was denied.
• Key point: Repeatedly omitting one order from specific contest lists contradicts a later claim that the operator intended to contest everything.

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. 

STAKER
& PARSON COMPANIES

Docket
No. WEST 2025-0013

A.C.
No. 42-01452-599648  

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 October 25, 2024, the Commission received
from Staker & Parson Companies (“S&P”) 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). [1]

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 May 20, 2024. On May 31,
2024, S&P timely contested 27 of the 28 citations contained in the
assessment. [2]
The proposed assessment associated with the remaining citation (Order No.
9907263) became a final order of the Commission on June 19, 2024. A delinquency
notice was mailed to the operator on August 5, 2024, and the case was referred
to the U.S. Department of Treasury for collection on October 3, 2024.                      

S&P asserts that it always intended to
contest all 28 citations in the proposed assessment, but inadvertently failed
to check the contest box for Order No. 9907263 due to a simple clerical mistake.
The operator states that it moved to reopen the assessment after recently
discovering the error, and notes that its process for contesting enforcement
actions has been effective up to this point. The Secretary opposes the motion
to reopen. He asserts that the documents submitted by the operator contradict
its alleged intent to contest Order No. 9907263, and that the operator has
failed to explain its delay in seeking relief after learning that the order had
become final.

Clear indicia that an operator intended to
contest a citation may be relevant to whether good cause exists to reopen an
assessment. E.g. , Carmeuse Lime & Stone, Inc. , 45 FMSHRC 179,
180 (Apr. 2023). Here, no such indicia exist. To the contrary, the cover letter
filed with S&P’s contest documentation twice lists the citations it
wished to contest, and both lists omit Order No. 9907263. Moreover, all
proposed assessments provide operators with the option of checking a box
indicating that the operator “wish[es] to contest . . . all violations.” This
was not checked. Rather than checking the “contest all” box and stating in its
cover letter that it wished to contest the entire assessment, S&P chose to
individually identify specific citations for contest and repeatedly omitted
Order No. 9907263. This contraindicates an intent to contest all of the
citations. Cf. St. Mary’s Cement U.S., LLC , 46 FMSHRC 1005 (Dec. 2024)
(finding an operator timely contested the entire proposed assessment where it
accidentally omitted a page but checked the “contest all” box). S&P’s
conclusory statement that it intended to contest all 28 citations is
insufficient to justify reopening. E.g. , Southwest Rock Prod., Inc .,
45 FMSHRC 747, 748 (Aug. 2023).

Additionally, S&P has failed to explain
its delay in seeking relief. Motions to reopen filed more than 30 days after an
operator’s receipt of its first notice from MSHA that it failed to timely
file a notice of contest are not presumptively considered as having been filed
within a reasonable amount of time. Such motions should explain why the
operator waited to file for reopening. The lack of such an explanation is
grounds for the Commission to deny the motion. Highland Mining Co. , 31
FMSHRC 1313, 1316-17 (Nov. 2009). Here, S&P filed its motion to reopen on
October 28, 2024, more than two months after the August 5 delinquency notice
and more than three months after the July 22 Penalty Petition in Docket No.
WEST 2024-0255. [3]
However, S&P merely states that it “recently discovered that it had not
contested the Order.” Mot. at 2. The operator does not explain when or how it
made this discovery, or why its motion was not filed until October.

Having
reviewed S&P’s request and the Secretary’s response, we find that the operator
has not provided an explanation justifying relief. Accordingly, we deny S&P’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 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 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:

R.
Brian Hendrix, Esq.

Husch
Blackwell LLP

1801
Pennsylvania Ave NW, Suite 1000

Washington
DC 20006-3606

[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] S&P specifically
seeks to reopen Order No. 9907263.

[2] Commission
proceedings have since been initiated for the 27 timely contested citations (Docket
No. WEST 2024-0255). The Secretary filed a Penalty Petition with the Commission
on July 22, 2024, and S&P filed an Answer to the Petition on July 31.

[3] As noted, Docket
No. WEST 2024-0255 contains the 27 citations that the operator timely contested.
The Penalty Petition accordingly lists those 27 citations and not Order
No. 9907263. S&P clearly received and read the Petition, as it filed an
answer on July 31, 2024.