Secretary of Labor v. Buzzi Unicem USA

Plain-English summary

Buzzi Unicem asked to reopen a defaulted penalty case so it could explain why it disagreed with the alleged violations. It gave no reason for failing to answer the Secretary's petition, the show-cause order, or the default order. Buzzi also waited about four months after MSHA sent a delinquency letter and did not explain that delay. The Secretary opposed relief. The Commission denied reopening with prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The request to reopen the defaulted proceeding was denied with prejudice.
• Key point: A desire to contest the merits does not establish good cause without an explanation for the default and later delay.

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.

BUZZI
UNICEM USA

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:

:

:

:

:

:

Docket
No. CENT 2022-0189

A.C.
No. 23-00188-556052

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY
THE COMMISSION:

            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 24, 2023, the Commission received from Buzzi
Unicem USA (“Buzzi”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the Default Order entered against it.

On
October 17, 2022, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Buzzi’s perceived failure to answer the Secretary of
Labor’s August 16, 2022, Petition for Assessment of Civil Penalty. By its
terms, the Order to Show Cause was deemed a Default Order on November 17, 2022,
when it appeared that the operator had not filed an answer within 30 days.

Buzzi
requests relief in order to state its reasons for why it disagrees with alleged
violations alleged in the Secretary’s petition. The Secretary opposes the
request to reopen noting that the operator has failed to provide any
explanation for its failure to file an answer to the Petition for Assessment of
Penalty, respond to the Order to Show Cause and Order of Default, and for why
it delayed responding to a delinquency letter issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) on February 1, 2023.

             The Judge’s

jurisdiction in this matter terminated when the default occurred. 29
C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural
rules, relief from a Judge’s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. §
823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of
the Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has
become a final decision of the Commission.

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”); Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal Prep.
Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).

Having reviewed Buzzi’s request and the Secretary’s
response, we conclude that the operator has failed to provide sufficient
information to determine whether good cause may exist to reopen the final order.
We have held that a grant of relief under Rule 60(b) requires more than
“general assertions or conclusory statements as to why an operator failed to
timely contest.” Atlanta Sand & Supply Co. , 30 FMSHRC 605, 608 (July
2008). However, Buzzi’s motion to reopen provides no explanation for its
failure to timely file a petition or respond to the Chief Judge’s Order to Show
Cause and Order of Default.

In considering
whether an operator has unreasonably delayed in filing a motion to reopen , we also find relevant the amount of time that
has passed between an operator’s receipt of a delinquency notice and the
operator’s filing of its motion to reopen . See,
e.g., Left Fork Mining Co. , 31 FMSHRC 8, 11 (Jan. 2009); Highland
Mining Co. , 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of
notice of delinquency must explain the reasons why the operator waited to file a
reopening request, and lack of explanation is grounds for the Commission to deny
the motion).
Here, the operator attempted to reopen the case approximately four months after
MSHA sent it a delinquency letter. No explanation is provided for this lengthy
delay.

Accordingly, we deny Buzzi’s
request to reopen with prejudice. See Southwest Rock Prod., Inc. , 45
FMSHRC ___, No. WEST 2021-0275 (Aug. 30, 2023) ( denying motion to
reopen where operator provided insufficient information to determine whether
good cause existed to reopen and operator failed to explain lengthy delay in
filing motion).

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Steve
Miloscia

Safety &
Health Manager

Buzzi
Unicem USA, Selma Plant

1000
River Cement Road

Fetus,
MO 63028

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]