Secretary of Labor v. Western Refractory Construction, Inc.

Plain-English summary

Western Refractory defaulted after its safety manager did not see the Secretary's penalty petition or the ALJ's show-cause order because the emails went to a spam folder. The Commission found no prior similar failure, no history of reopening motions, and no allegation of bad faith. It also noted that Western had timely contested the assessment and moved promptly after discovering the missed filings. The Commission reopened the default and remanded for further proceedings. It warned that Western was now on notice and must prevent future Commission communications from being missed by its spam filter.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The final default order was reopened and the case was remanded.
• Key point: An isolated spam-filter error may justify reopening, but the operator must correct the problem once notified.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH
:

ADMINISTRATION (MSHA)
:

:

v.
: Docket No. CENT 2023-0191

: A.C. No. 25-01243-575170

WESTERN REFRACTORY :

CONSTRUCTION, INC. :

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 October 4, 2023, the Commission received
from Western Refractory Construction, Inc. (“Western”) a motion seeking to
reopen a penalty assessment proceeding and relieve it from the Default Order
entered against it.

On August
28, 2023, the Chief Administrative Law Judge issued an Order to Show Cause and
Order of Default in response to Western’s failure to answer the Secretary of
Labor’s June 28, 2023 Petition for Assessment of Civil Penalty. By its terms,
the Order to Show Cause was deemed a Default Order on September 28, 2023, when
it appeared that the operator had not filed an answer within 30 days.

The
operator states that the Secretary issued the proposed penalty assessment via
the Commission’s E-File system and served the assessment to the operator via
email. However, Western states that its Safety Manager Lauren O’Neal, who is
responsible for handling penalty contests and who generally forwards petitions
to undersigned counsel, did not receive copies of the assessment nor the
Judge’s show cause order in her email inbox. Western states that on September
25, 2023, O’Neal was provided with a copy of the penalty assessment after she
called the MSHA Conference Litigation Representative (“CLR”) to inquire about
the status of the case since she had not received any documentation concerning
the contest of the citation. Two days later, the CLR and Safety Manager spoke
again, and the CLR informed Western that the Petition had been filed in June
and its answer was delinquent. Western forwarded a copy of the Petition to its
counsel, who subsequently learned on October 2, 2023, that a Show Cause order
had been issued and become final. On October 3, 2023, O’Neal performed a search
of her email’s spam folder, which she does not routinely do, and discovered the
petition. Western immediately moved to reopen.

The
Secretary opposes the request to reopen arguing that Western Refractory has not
provided sufficient reasoning to justify the extraordinary relief of reopening.
O’Neal’s failure to review her emails in her spam folder which resulted in
Western’s failure to respond to the Petitions and Order does not constitute a
failure of service under Commission rule 29 C.F.R. 2700.7(c)(2) and is an
indication that the operator has unreliable and inadequate internal procedures.
She maintains that following its timely contest of the citation, Western knew
or should have known that a penalty petition would be filed within 45 days and
had a duty to inquire about it prior to default. Western has also failed to
identify any corrections it has made to its process to prevent this error in
the future.

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).

There
is no evidence of prior instances of Western failing to timely contest a
petition as a result of its internal spam filter misrouting emails to the junk,
trash or spam folder, nor does Western have a history of filing motions to
reopen. Further, we recognize that in the past, we have found simple failure to
return a contest form to constitute “mistake” or “inadvertence” sufficient to
establish good cause for reopening pursuant to Rule 60(b)(1). See e.g. Oak Grove Res., LLC, 39 FMSHRC 1768, 1769 (Sept.
2017) (reopening where operator paid citations it did not intend to contest but
“mistakenly” or “inadvertently” forgot to forward contest form to counsel,
which was an isolated incident). Because Western may have reasonably relied on
our prior caselaw regarding simple failure to return contest forms, we find it
would be unjust to deny this motion. Additionally,
we note the Secretary has not alleged that Western acted in bad faith. On the
contrary, after determining what caused the error, Western acknowledged that
the petition and orders had been received but overlooked because of its spam
filter. The operator also timely contested the penalty assessment, and promptly
filed its motion to reopen upon learning that it had failed to timely answer
the petition.

Therefore,
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. Nonetheless, we hold that once an operator is placed on notice, such
as in the instant case, that its email system is misrouting specific
communications, it is incumbent on that operator to take steps to ensure these
particular communications are not missed in the future due to spam filters.

/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:

Kristin R.B. White

Fisher & Phillips LLP

1125 17th Street, Suite 2400

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

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]