Secretary of Labor v. Sterling Materials

Plain-English summary

Sterling Materials intended to contest the penalty for Citation No. 9870856 but confused it with the similarly numbered Citation No. 9870855, which it had timely contested in another docket. The operator paid all six penalties in the assessment after receiving a delinquency notice. The Secretary did not oppose reopening. The Commission majority found that the missed contest resulted from a clerical mistake, reopened Citation No. 9870856, and remanded it for further proceedings. Commissioner Baker dissented because the operator had missed the deadline and paid the penalty, which he did not view as justifiable mistake or excusable neglect.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The penalty for Citation No. 9870856 was reopened and remanded over one Commissioner's dissent.
• Key point: Confusing two nearly identical citation numbers supported reopening as a clerical error.

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.

STERLING
MATERIALS

:

:

:

:

:

:

:

Docket
No. KENT 2022-0127

A.C.
No. 15-18068-548406

:

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

ORDER

BY: Jordan, Chair;
Althen and Rajkovich, Commissioners

This
case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On September 9, 2022, the Commission received
from Sterling Materials (“Sterling”) a motion to reopen final orders of the
Commission pursuant to section 105(a) of the 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 to the operator on January
24, 2022 and became a final order of the Commission on February 23, 2022. Thereafter,
MSHA received partial payment of the civil penalties. On April 12, 2022, MSHA
sent the operator a delinquency notice. The operator then sent additional
payments in satisfaction of the total assessed penalty for the six citations at
issue in the assessment. 

Sterling
asserts that it intended to contest the civil penalty associated with Citation
No. 9870856, but failed to timely file contest as a result of a clerical error.
Sterling maintains that it confused the status of Citation No. 9870856 with the
status of a similarly numbered citation (Citation No. 9870855). Sterling had
previously timely filed to contest the proposed penalty for the similarly
numbered citation. [1]
The Secretary does not oppose the operator’s motion to reopen.

Having
reviewed Sterling’s request and the Secretary’s
response, we find that Sterling demonstrated that its failure to timely
file to contest the proposed penalty for Citation No. 9870856 was due to a
mistake and clerical error. In the interest of
justice, we hereby reopen the contest of 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:

In this case, Sterling Materials failed to
timely contest a proposed penalty and then paid the amount owed. For the
reasons set forth in my dissent in Omya Inc ., 45 FMSHRC___, 2023 WL
2559811 (Mar. 9, 2023), I do not believe it is accurate to characterize this
action as a justifiable mistake or excusable neglect.

Therefore, I would deny its motion to
reopen.

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Adele
L. Abrams, Esq., CMSP

Law
Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

[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] Sterling’s motion
mistakenly states that Citation No. 9870855 was part of Docket No. KENT
2021-0129. In fact, Citation No. 9870855 was contained in Docket No. KENT
2021-0130.