Secretary of Labor v. Cooper Stone, LLC

Plain-English summary

Cooper Stone defaulted after failing to answer the Secretary's penalty petition and the ALJ's show-cause order. The company said it believed no answer was required while settlement negotiations with MSHA were continuing. The Commission noted that both filings explained the required procedure and that Cooper Stone had operated the mine for more than 30 years. It also found no explanation for waiting months after negotiations ended and after a delinquency notice to request reopening. The Commission denied the motion for lack of good cause.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The motion to reopen the final default order was denied.
• Key point: Settlement discussions do not suspend filing duties, and an unexplained delay after negotiations end can independently bar 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.

COOPER
STONE, LLC

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Docket
No. CENT 2023-0056

A.C.
No. 41-03401-566398

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BEFORE: Jordan,
Chair; Baker, and Marvit, 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 November 7, 2023, the Commission received from Cooper
Stone, LLC (“Cooper Stone”) a motion seeking to reopen a penalty assessment and
relieve it from the Default Order entered against it.

On March 20, 2023,
the Chief Administrative Law Judge issued an Order to Show Cause in response to
Cooper Stone’s perceived failure to answer the Secretary of Labor’s January 17,
2023 Petition for Assessment of Civil Penalty. By its terms, the Order to Show
Cause was deemed a default on April 20, 2023, when it appeared the operator had
not filed an answer within 30 days.

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. MSHA mailed the operator a
delinquency notice on July 5, 2023.

Cooper Stone seeks
to reopen this matter, claiming that negotiations with MSHA were ongoing when
it received the default order and it mistakenly believed that no answer needed
to be filed unless the parties failed to reach an agreement. Cooper Stone
states that negotiations with MSHA began on February 2, 2023, and ended on May
30, 2023.

The Secretary
opposes Cooper Stone’s request to reopen the assessment, asserting that
ignorance of the proper procedure is not a sufficient justification for
reopening and may indicate an unreliable or inadequate internal processing
system. She notes that both the Penalty Petition and Order to Show Cause explained
the proper procedure, and that as an experienced operator who had owned the
relevant mine since 1992, Cooper Stone should have known how to proceed with
penalty contests. The Secretary also asserts that Cooper Stone failed to adequately
explain why the motion to reopen was filed four months after MSHA mailed a
delinquency notification, and six months after the Show Cause Order was issued
(and negotiations ended).

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).

However, we have also held that motions to
reopen, regardless of merit, are only granted if they are filed within a
reasonable time. E.g., Highland Mining Co., 31 FMSHRC 1313, 1316
(Nov. 2009). Motions filed within 30 days of an operator receiving notice that
it failed to timely respond are presumptively considered to be filed within a
reasonable amount of time. However, motions filed more than 30 days after such
notification should include an explanation as to why the operator waited so
long to file for reopening, and the lack of such explanation is grounds for the
Commission to deny the motion. Id. at 1316-17. Here, Cooper Stone
received the Judge’s Order to Show Cause on March 20 and MSHA sent the operator
a delinquency notice on July 5, yet the operator did not file its motion to
reopen until November 7, 2023. Cooper Stone has given no explanation for this
delay.

Additionally, while “mistake” may provide
a basis for relief, we question whether the operator’s mistaken belief in this
instance was sufficiently reasonable or excusable to justify relief. Cooper
Stone, an operator with over 30 years of experience, asserts that it believed
an answer to the Petition was not required unless and until negotiations with
MSHA ended. However, as the Secretary notes and Cooper Stone acknowledges, the
proper procedure for responding to the Penalty Petition was explained in both
the Petition and the Judge’s Show Cause Order. Regardless, even if the
operator’s mistaken belief was potentially reasonable, negotiations with MSHA
ended on May 30, 2023, and the operator has failed to explain why it waited
until November 7, 2023 to request that the proceeding be reopened.

Having reviewed Cooper Stone’s request and
the Secretary’s response, we find that the operator has not demonstrated good
cause for reopening the captioned proceeding. Accordingly, we deny Cooper
Stone’s motion.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Micah
Flippen

Cooper
Stone LLC

1003
Hemingway Drive

College
Station, TX 77845

[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

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]