Secretary of Labor v. Drake Cement, LLC

Plain-English summary

Drake Cement intended to contest ten citations and mailed the contest form before the deadline, but a new safety manager sent it with the penalty payment to MSHA's payment lockbox instead of the contest office. The manager later checked MSHA's database, discovered the problem, and sent the assessment to counsel, who moved to reopen the next day. The Secretary did not oppose. The majority found inadvertence and good faith, reopened the assessment, and remanded it for further 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: A timely but misaddressed contest, followed by proactive checking and a 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. 

DRAKE
CEMENT, LLC

Docket
No. WEST 2025-0144

A.C.
No. 02-03243-609564

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. (2024) (“Mine Act”). On January 17, 2025, the Commission received
from Drake Cement, LLC, 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 November 12, 2024, and
became a final order of the Commission on December 12, 2024.

Drake Cement asserts that it intended to
contest ten of the twenty-three citations 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 Washington, D.C. or emailed
to [email protected], while payments for uncontested citations must
be mailed to MSHA’s Lock Box in St. Louis, Missouri. On December 10, 2024, the
operator’s Health & Safety Manager mailed its contest form to the St. Louis
address along with payment for the uncontested citations. [1]
The Health & Safety Manager, who was new to his role and had not previously
processed a penalty contest, mistakenly believed the Compliance Office would
forward the contest form to the correct office. He realized the penalties had
not been timely contested on January 14 when he checked MSHA’s Mine Data
Retrieval System and on January 16 when MSHA’s field office called regarding
the assessment. He forwarded the assessment to outside counsel on January 16,
and counsel moved to reopen the next day. The Secretary does not oppose the operator’s
request to reopen.

We note that Drake Cement attempted to
timely contest the proposed assessment. The contest form was mailed on December
10, 2024, before the assessment became final. While the form was mailed to the
wrong address, this appears to be the Health & Safety Manager’s first and
only such error. We also note that the operator proactively checked the status
of the citations it wished to contest, and promptly moved to reopen a few days
after learning that the assessment had become final. 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 Drake Cement’s request and the
Secretary’s response, we find that Drake Cement’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:

Karen L.
Johnston, Esq.

Jackson Kelly
PLLC

1099 18th Street,
Suite 2150

Denver, CO 80202

[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]  

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
represents that MSHA applied part of Drake Cement’s payment to Citation Nos.
9909312, 9909174 and 9909176 as an “administrative function.” While three of
the citations that the operator seeks to reopen have been paid, the Secretary
represents that this administrative application of Drake Cement’s payment should
not render the motion to reopen moot. Resp. at 2 n.2.