Secretary of Labor v. Cyber Square

Plain-English summary

Cyber Square received two copies of one $610 assessment but could not locate a different $4,084 assessment containing three citations it intended to contest. It discovered the missing assessment when later paperwork showed the citations as final and immediately contacted MSHA. The company filed its reopening request within 30 days after MSHA supplied a copy, and the Secretary did not oppose relief because the duplicate mailing may have caused the problem. The majority reopened the assessment, as confirmed by the dissent's description of the disposition. The official release does not state any further procedural instructions after finding the motion timely.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The majority reopened the missing assessment; the release gives no further procedural direction.
• Key point: Prompt action after discovering a possibly misdirected assessment supported reopening where the operator intended to contest and had no history of late filings.

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.
CYBER SQUARE |
|
|
Docket No. CENT 2025-0127 A.C. No. 16-01613-609259
|

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

ORDER

BY: Rajkovich, Chair; Jordan and Baker, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act”). On January 17, 2025, the Commission received from Cyber Square (“Cyber”) 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). The Secretary does not oppose the motion.

Under section 105(a), 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 November 5, 2024.

According to Cyber, in early November it
received two letters from MSHA several days apart containing identical proposed
penalty assessments (Assessment No. 000602244). The Assessment totaled $610 for
two citations and were not contested. [On December 18,
2024, Cyber learned that Assessment No. 000609259, which it had no record of
receiving, had also been issued around the same time for citations that it had
received in May 2024.][Specifically, Cyber learned
of the missing assessment when it received another proposed assessment showing the
May citations as having an outstanding balance totaling $4,084. The operator then
saw that the citations were showing as final orders on MSHA’s Data Retrieval
system. Proposed Penalty Assessment No. 000609259 contained three citations
that Cyber intended to contest and that had already been the subjects of an
MSHA conference.]

Upon realizing Assessment No. 000609259 was unaccounted for, Cyber immediately emailed MSHA to inquire and began an internal search for the document but was unable to locate it. On December 19, 2024, MSHA emailed a copy of the original Assessment to the operator and informed Cyber that it would need to file a motion to reopen.

Cyber states that it is unclear whether MSHA inadvertently sent Assessment No. 000602244 twice and failed to send Assessment No. 000609259 as intended, or whether the operator received the second assessment and inadvertently lost it. It states that it has never filed a contest late and at all times intended to contest these citations. Due to the inadvertent error of sending the same assessment twice and Cyber’s inability to locate Assessment No. 000609259, the Secretary does not oppose the reopening of this assessment. However, the Secretary reminds Cyber to ensure that future contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s procedural rules and that she may oppose future requests to reopen.

We note that the motion to reopen was
timely filed. The Commission has 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); Cobleskill Stone Products, Inc., 47
FMSHRC 192, 193 (Mar. 2025). Here, the motion to reopen was filed on January
17, 2025, within 30 days of its December 18, 2024 email conversation with MSHA
and its December 19, 2024 receipt of the copy of the assessment.

/s/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, dissenting:

I write to disagree with the Majority in this case for the reasons set forth below.

In [Explosive
Contractors], I dissented and explained that Congress did not grant the
Commission the authority to reopen final orders under section 105(a) of the
Mine Act. 46 FMSHRC 965, 968 (Dec. 2024) (Marvit, M., dissenting). The
Commission’s repeated invocation of Federal Rule of Civil Procedure 60(b)
cannot overcome the statutory language. However, in

In the instant case, as the Majority
recounts, the
Commission’s order became final under the language of section 105(a), and the
operator provided no affirmative proof that it did not receive the order. The
Majority, however, votes to reopen the case. The Mine Act has not granted us
authority to reconsider final orders of the Commission as I set out more fully
in Explosive Contractors. To the contrary, it has limited our authority
to do so. Therefore, I respectfully dissent and would deny reopening.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

John Pereza

Safety Consultant for Cyber Square

P.O. Box 177

Cortaro, AZ 85652

[email protected]

Marcus Morton

Manager

Cyber Square

2701E 70th Street

Shreveport, LA 71105

[email protected]

Thomas A. Paige, Esq.

Deputy Associate Solicitor

US Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

Melanie Garris

US Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting Chief Judge Micheal G. Young

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]