Secretary of Labor v. GCC Dacotah, Inc.

Plain-English summary

GCC Dacotah failed to file two penalty contests because employees typed MSHA's contest email address incorrectly. The same mistake had already caused another missed contest, after which the company said it circulated a preventive memorandum. The Commission found that GCC Dacotah made the same error four times in four months and that several managers copied on the emails failed to catch it. It also found the proposed use of saved addresses and read receipts insufficient, since a read receipt had not prevented one of the repeated errors. The Commission held that the pattern showed an inadequate internal processing system and denied reopening with prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Reopening of both final assessments was denied with prejudice.
• Key point: Repeating the same contest-email typo after corrective warnings shows a systemic process failure, not excusable neglect.

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 2023-0229

A.C.
No. 39-00022-573671

Docket
No. CENT 2023-0230

A.C.
No. 39-00022-575493

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

ORDER

BY THE COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On July 18, 2023 the Commission received from GCC
Dacotah, Inc. (“GCC Dacotah”) a motion seeking to reopen two penalty assessments
that had become final orders of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S.C. § 815(a).[1]

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
in CENT 2023-0229 was delivered on April 6, 2023, and became a final order of
the Commission on May 8, 2023. On June 21, 2023, a delinquency notice was mailed
to the operator. In CENT 2023-0230, MSHA’s records indicate that the proposed
assessment was delivered on May 8, 2023, and became a final order of the
Commission on June 7, 2023.

The operator claims that service to the Secretary
was unsuccessful due to a typo in MSHA’s email address for filing contests. The
operator claims that it has manually entered and saved the correct MSHA email
address into its Outlook system, and that it will request a read receipt for
future contests filed with MSHA. The Secretary of Labor opposes the request to
reopen noting that this particular error—mistyping
MSHA’s email address for contests—is not a
unique occurrence for this operator and demonstrates a repeated failure of the
operator’s internal processing system. Specifically, the
Secretary cites to Docket No. CENT 2023-0173 to illustrate that an identical error
had resulted in the operator’s failure to timely contest another recent
assessment.[2] GCC
Dacotah, Inc., 45 FMSHRC 885 (Oct. 3, 2023).

The
Commission has made it clear 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 the assessment. E.g.,
Shelter Creek Capital, LLC, 34 FMSHRC 3053, 3054 (Dec. 2012); Oak
Grove Res., LLC, 33 FMSHRC 103. 104 (Feb. 2011). Significantly, 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). We have
also held that a repeated instance of the same clerical error does not warrant
reopening. Marfork Coal Co., LLC, 2023 WL 4052208 (June 7, 2023).

Here, GCC Dacotah committed
the same error four times in as many months. The operator first sent an
assessment contest to an incorrect email address on March 24, 2023. The
operator filed a motion to reopen the assessment, which the Commission granted
(CENT 2023-0173). In its motion, GCC Dacotah stated that it had circulated a
memorandum to relevant safety personnel to prevent the error from recurring. Nevertheless,
two more contests for a new assessment were sent to an incorrect email address
in April 2023, and when the error was discovered, a fourth contest for another
assessment was again sent to an incorrect email address in May 2023 (CENT
2023-0229, CENT 2023-0230). While the first case could be considered an honest
mistake by the operator, the repeated nature of this error indicates a larger
problem with the operator’s internal processes. We note that multiple members
of management were included on the April and May contest emails but did not
catch the typographical errors.

As noted, GCC
Dacotah stated in CENT 2023-0173 that it had circulated a memorandum to prevent
further typographical errors. It appears the memorandum was ineffective. After
the errors here, the operator claims that it has entered the correct MSHA email
address into its email system and will be requesting read receipts from MSHA. However,
the operator does not provide sufficient assurances that these precautions will
not be similarly ineffective. In fact, it appears that the operator used read
receipts when contesting CENT 2023-0230, but that did not seem to have
prevented the operator from using the wrong email address yet again.

Upon reviewing the record, we find the multiple errors
at issue to be the result of the operator’s inadequate internal processing
system. Therefore, GCC Dacotah has not demonstrated good cause for its failure to
timely contest the proposed assessments. The motion is DENIED with prejudice.

/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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, 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

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] For the limited
purpose of addressing this motion to reopen, we hereby consolidate docket
numbers CENT 2023-0229 and CENT 2023-0230 involving similar procedural issues. 29
C.F.R. § 2700.12.

[2] The contests for
the assessments at issue in CENT 2023-0173, CENT 2023-0229 and CENT 2023-0230
were all erroneously emailed to “[email protected]” and/or “[email protected]”
rather than “[email protected].”