Secretary of Labor v. Morton Salt, Inc.

Plain-English summary

Morton Salt calculated its contest deadline from the date an assessment reached the mine site instead of the earlier date it reached the company's P.O. Box. It mailed the contest one day after the assessment became a final Commission order. The operator moved promptly to reopen and said it would change its process to use the post-office receipt date. The Secretary did not oppose reopening. The Commission found an excusable mistake and remanded the matter, except that the request was moot for one citation that MSHA had reissued and the operator had timely contested.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was reopened and remanded, with the motion moot as to Citation No. 9649715.
• Key point: The 30-day period runs from receipt at the operator's P.O. Box, not later internal delivery to the mine site.

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.

MORTON
SALT, INC.

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Docket
No. CENT 2022-0237

A.C.
No. 16-00970-558634

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 September 2, 2022, the Commission received
from Morton Salt, Inc., 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 July 22, 2022, and
became a final order of the Commission on August 22, 2022. Morton Salt explains
that mail is transferred from the operator’s P.O. Box to the mine site on
regularly scheduled days. The operator asserts it mistakenly believed the
30-day deadline for contesting the proposed assessment was calculated from
receipt at the mine site (July 26) rather than receipt at the P.O. Box (July
22). Morton Salt believed it had timely contested the proposed assessment when
it mailed its notice of contest on August 23, one day after the assessment
became final. The operator adds that it will correct its process to ensure
notices of contest are sent within 30 days from receipt at the post office. The
Secretary does not oppose the request to reopen, but urges the operator to take
steps to ensure that future penalty contests are timely filed.

Having
reviewed Morton Salt’s request and the
Secretary’s response, and in light of the brief nature of the delay, the
operator’s prompt filing of a motion to reopen, and the operator’s stated intent
to correct the issue, we find that the operator’s failure to timely contest the
proposed assessment was the result of excusable mistake. 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. [1]
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/ 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:

Donna
Vetrano Pryor, Esq.

Husch
Blackwell LLP

1801
Wewatta Street, Suite 100

Denver,
CO 80202

[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

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] Morton Salt’s
motion to reopen specifies seven citations the operator wishes to contest. The
Secretary subsequently modified and issued a new proposed assessment for one of
those citations. The proposed assessment was timely contested and assigned to
an Administrative Law Judge (Docket No. CENT 2023-0009). Accordingly, Morton
Salt’s motion is moot with respect to Citation No. 9649715.