Secretary of Labor v. GCC Dacotah, Inc.

Plain-English summary

GCC Dacotah attempted to email its contest on time, but a typo in MSHA's address prevented delivery and the company's system produced no error notice. After learning of the problem, it moved to reopen within 30 days and circulated a memorandum to safety personnel. The Commission majority distinguished earlier GCC Dacotah reopening cases because those involved responsibility for mailing, while this was the company's first wrong-address error. It found a unique good-faith mistake, reopened the assessment, and remanded the case. Commissioner Baker dissented because a safety technician handled the contest despite an earlier promise that the plant safety manager would be responsible, which he viewed as evidence that the process remained unreliable.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was reopened and the case was remanded.
• Key point: A prompt response to a first-time email-address error supported reopening, despite earlier processing mistakes of a different kind.

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.

GCC
DACOTAH, INC.

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Docket
No. CENT 2023-0173

A.C.
No. 39-00022-571991

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

ORDER

BY: Jordan,
Chair; Althen and Rajkovich, Commissioners

        This

matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On May 2, 2023, the Commission received from GCC
Dacotah, Inc. (“GCC Dacotah”) 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 March 6, 2023, and became a final order of the Commission on April
5, 2023. The Secretary of Labor does not oppose the request to reopen.

GCC Dacotah contends that it timely
contested the proposed assessment on March 24, 2023, but service to the
Secretary was unsuccessful due to a typo in MSHA’s email address. Payment for
the uncontested citations was timely received on April 5, 2023. GCC Dacotah
claims that its email system did not provide an error notification that the
email containing the contest had not been delivered. On April 24, a few weeks
after the penalties became a final order, GCC Dacotah contacted MSHA and
learned that its contest had been sent to an incorrect email address. To
prevent the error from recurring, GCC Dacotah circulated a memorandum identifying
the error to its safety personnel.

We note that the motion to reopen was
timely filed. The Commission has previously held
that “[m]otions to reopen received within 30 days of an operator’s receipt of
its first notice from MSHA that it has failed to timely file a notice of
contest will be presumptively considered as having been filed within a
reasonable amount of time.” Highland Mining Co., 31 FMSHRC 1313, 1316-17
(Nov. 2009). Here, the motion to reopen was filed on May 2, 2023, within
30 days of the operator learning that it had sent its contest to an incorrect
address. Therefore, the motion to reopen was filed within a reasonable amount
of time.

          We recognize that the

operator previously filed motions to reopen in May 2020. However, in those
instances, the operator’s failure to timely contest the assessments resulted
from incorrect assumptions regarding who bore responsibility for mailing the
contest forms to MSHA. In our prior Commission order disposing of these
requests to reopen, we noted briefly that the operator claimed that two
assessments had not been timely contested because of “an improper understanding
and implementation of an internal procedure” regarding which employee bore
responsibility for contesting assessments. GCC Dacotah, Inc., 43 FMSHRC
61 (Jan. 2021). [1] In contrast, in this
matter, the operator’s failure to timely contest the assessment resulted from
an error in entering an email address.

While multiple repeated processing errors of
the same nature can reflect an inadequate internal processing system, Lone
Mountain, 35 FMSHRC 3342 (Nov. 2013) (emphasizing the repeated misplacement
of paperwork by the operator), a unique occurrence that results in an
operator’s failure to timely contest an assessment does not necessarily reflect
that the internal processing system was ineffective. Noranda, 39 FMSHRC
441 (Mar. 2017). There is no evidence in the record of prior instances
of GCC Dacotah failing to timely contest an assessment as a result of
incorrectly entering MSHA’s email address. Therefore, we find such an error to
be a unique occurrence, rather than the result of an inadequate processing
system. In addition, we note that the Secretary has not alleged that GCC
Dacotah acted in bad faith. Furthermore, GCC Dacotah demonstrated its good
faith by promptly filing the motion to reopen, and by taking precautions to
prevent a recurrence of this error.

        Having

reviewed GCC Dacotah’s request and the
Secretary’s response, we find that GCC Dacotah demonstrated good cause
for its failure to timely respond, and acted in good faith. 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/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

Commissioner Baker, dissenting:

I would find that GCC Dacotah failed to
establish good cause to reopen in this case.

        A

party seeking the reopening of an assessment bears the burden of establishing
that the default was the result of more than mere carelessness. Noranda
Alumina, LLC , 39 FMSHRC 441, 443 (Mar. 2017). The Commission has consistently
held that where a failure to contest a proposed assessment results from an
inadequate or unreliable internal processing system, the operator has not
established grounds for reopening an assessment. See Pinnacle Mining
Co. , 30 FMSHRC 1061, 1062 (Dec. 2008 ); Moose Lake Aggregates ,
34 FMSHRC 1 (Jan. 2012); Kuhlman Constr. , 34 FMSHRC 2894 (Nov. 2012) ; Enviro
Care, Inc. , 39 FMSHRC 819 (Apr. 2017). When deciding whether an operator has
made a showing of good cause to reopen, the Commission considers, “procedures
to prevent, identify and correct such mistakes have been adopted or changed, as
appropriate.” Noranda Alumina, 39 FMSHRC at 443. In short, an operator
can demonstrate that it is not careless by setting forth in its motion to
reopen new or improved procedures that it will implement to ensure that its
internal processing system is adequate and reliable in the future.

In May 2020, GCC Dacotah filed a motion to
reopen after it had failed to timely contest a penalty. GCC Dacotah, Inc. ,
43 FMSHRC 61 (Jan. 2021). According to the Commission at that time, “GCC
Dacotah’s motion says that the proposed assessments in these matters were not
timely contested due to an improper understanding and implementation of an
internal procedure .” Id . at 62 (emphasis added).

In its motion to reopen in that case, GCC
Dacotah asserted that it had made changes to its internal processing system to
ensure that it did not miss deadlines in the future. Specifically, GCC
Dacotah’s motion included a declaration signed by its Corporate Safety Director
setting forth changes the company made to ensure that assessments were properly
processed. Paragraph 18 of that declaration, in relevant part, states:

In response to its
fact-finding investigation, GCC has taken steps to prevent a reoccurrence. Specifically,
GCC is designating the plant safety manager as the company official responsible
for executing and filing the contest form in a timely manner. On May 27, 2020,
I sent out an email to all of the safety managers at GCC's MSHA-regulated
facilities . . . providing instructions on contest procedures.

Based
on this representation, the Commission granted the Motion to Reopen.

In its current motion, GCC Dacotah asserts
that an administrative error prevented it from timely filing a contest to the
assessment. However, this motion states that the mistake occurred when an
employee—a “safety technician” rather than the Plant Manager—entered an
incorrect email address for MSHA when sending in GCC Dacotah’s contest. Once
again, GCC Dacotah has made representations that it will take actions to
prevent this administrative error from recurring. Specifically, GCC Dacotah
states it forwarded a memo to safety personnel regarding the error.

         The

circumstances set forth in GCC Dacotah’s filings demonstrate a lack of good
cause to reopen. In 2020, GCC Dacotah was on notice that its processing system
was not reliable and could result in mistakes. It promised to correct its
processing system by ensuring that a plant safety manager would execute and
file future contest forms in a timely manner. The Commission accepted that with
the promised improvements, GCC Dacotah’s internal processing system would be
reliable and, therefore, found good cause to reopen.

However, GCC Dacotah’s current motion to
reopen shows that it failed to live up to its promise. A safety technician,
rather than the Plant Manager, processed the company’s contest documents. [2] As a result of
GCC Dactoah’s failure to follow the improvements outlined in its 2020 Motion to
Reopen, its processing system remains evidently unreliable. [3] The fact that the
mistake alleged here is slightly different than previous mistakes is irrelevant:
GCC Dacotah was on notice that it needed to ensure that its processing system
was reliable, not that it needed to correct a single, discrete issue. Further,
I do not believe their promises to correct the problem in the future to be
persuasive, as they have already made similar promises and failed to keep them
in the past. Therefore, I would find that GCC Dacotah has failed to establish
that it is entitled to the “extraordinary” relief of reopening . See Lone
Mountain Processing, Inc. , 35 FMSHRC 3342 (Nov. 2013) (characterizing
reopening as extraordinary relief).

In
light of these circumstances I, respectfully, dissent.

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Donald
Mousel

Safety
Technician

GCC
Dacotah, Inc.

501
N. St. Onge

Rapid
City, SD 57702

[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] We decided to
grant these requests to reopen. Id.

[2] As the party
seeking reopening and bearing the burden of demonstrating good cause, GCC
Dacotah also bears of the burden of showing that it followed, or attempted to
follow, the processing procedures it put in place. It has not done so here.

[3] I would find that
GCC Dacotah’s failure to timely file a contest in this instance clearly
demonstrates an inadequate or unreliable processing system. This is true
especially in light of the representations made in the company’s May 2020
motion to reopen. However, I would also take judicial notice of two subsequent
Motions to Reopen from GCC Dacotah (CENT 2023-0229 and CENT 2023-0230) which
assert that the company committed the same mistake—an incorrect email address
used on the contest form—and is entitled to reopening. These motions are still
pending before the Commission. These motions provide additional support for the
position that the mistake in this case was not isolated, but instead part of an
unreliable system that did not ensure that contests were properly forwarded to
MSHA. Repeated instances of the same clerical error do not warrant relief. See
Marfork Coal Co., LLC , 2023 WL 4052208, at*2 (FMSHRC June 7, 2023).