Secretary of Labor v. Westfall Aggregate & Materials, Inc.

Plain-English summary

Westfall Aggregate & Materials, Inc. asked the Commission to reopen a $16,400 special assessment tied to Citation No. 6559330, about seven years after the assessment allegedly became final. The Commission majority found that the record contained MSHA's internal special-assessment documentation but not sufficient evidence that MSHA had issued the required written citation. It held that the proposed assessment therefore never became effective or a final Commission order. The Commission dismissed the reopening request as moot and said MSHA could issue another proposed assessment after complying with the written-citation requirement. Chair Traynor dissented, reasoning that Westfall had acknowledged receiving the citation in narrative form and that the reopening request was untimely.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(a) and 815(a); 30 C.F.R. §§ 56.14101(a)(1), 100.5(b), and 2700.1(b)
• Outcome: The Commission dismissed the request to reopen as moot because the majority found no final order, while leaving MSHA free to issue another assessment after complying with section 104(a).
• Key point: A proposed penalty assessment cannot become a final Commission order without sufficient evidence that MSHA issued the underlying citation in writing.

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)                      :         Docket No. LAKE 2019-0317-M

:         A.C. No.   33-04563-261088

v.                                              
:        

:

WESTFALL AGGREGATE &               :

MATERIALS, INC.                             :

BEFORE: 
Traynor, Chair; Althen and Rajkovich, Commissioners

ORDER

BY:
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 July 12, 2019, the Commission received from Westfall
Aggregate & Materials, Inc. (“Westfall”) a request to reopen a penalty
assessment pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

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. 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)(1) 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, or excusable neglect. 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).

The operator seeks to reopen a
$16,400 special assessment for a single violation allegedly documented in
Citation No. 6559330. The operator received the assessment on July 20, 2011. The
Secretary claims that the assessment became a final order on August 19, 2011,
and that MSHA mailed a delinquency notification on October 6, 2011. The motion
to reopen was filed in July 2019, seven years after the alleged final order. The
current assessment, after interest, is $33,559.46.

According to the proposed penalty
assessment, Citation No. 6559330 was issued to the operator along with Order
No. 6559329 on February 28, 2011. However, the operator “draws the
Commission[’s] attention to the fact that Citation #6559330 as received by
Petitioner and as set forth in MSHA files, did not consist of or include a ‘Mine
Citation/Order.’” MTR at 1-2. Moreover, in contrast to the order, there is no
Citation/Order Form for Citation No. 6559330 in the record.

The Secretary
opposes the operator’s request to reopen. The Secretary contends that the
operator’s motion to reopen must be denied because it was filed more than a
year after the final order. [1]
In addition, the Secretary contends that the operator is not entitled to relief
because its failure to timely contest the penalty was the result of an
inadequate processing system, which resulted in the proposed assessment being
placed into the wrong company file, and because the operator has an extensive
delinquency history. [2]  

The operator allegedly contacted
the Secretary twice regarding the assessment. The operator claims that it made
an inquiry regarding the $16,400 assessment to Beau Ellis, an attorney for the
Secretary, and that it made an inquiry in 2016 to Brian Yesko, a Conference Litigation
Representative. The operator alleges that the Department of Labor did not
provide any information in response to these queries. An MSHA inspector later
contacted the operator in April 2019 regarding the unpaid balance for the
assessment. Apparently, this was the first time MSHA, or anyone else, had
contacted the operator about the assessment since it allegedly became a final
order. The operator filed its request to reopen in July 2019, a few months
after being contacted by MSHA.

Under section 104(a) of the Mine Act,
30 U.S.C. § 814(a), MSHA must issue citations to operators in writing. Under section
105(a), MSHA can propose penalty assessments for citations issued pursuant to
section 104. In Dittrich Mechanical and Fabrication, Inc., 32 FMSHRC
1599, 1600 (Dec. 2010), the Commission cited these provisions to hold that
if an operator claims not to have received a written citation, i.e., the
appropriate Citation/Order Form, the Secretary must provide evidence that such
a citation had been issued. And if the Secretary fails to provide such evidence,
the Commission “ cannot find that the assessment was
ever effective.” Dittrich, 32 FMSHRC at 1600.  

In Dittrich, the operator
claimed not to have received a written citation, and the Secretary failed to
provide evidence of a written citation. Although the Secretary provided
“internal MSHA documentation” suggesting that a citation had been issued, the Commission
held that this was not sufficient to infer the issuance of a written
citation. Id. at n.1. Therefore, the Commission found that the
assessment in Dittrich never became effective, and consequently never
became a final order. However, the Commission did not foreclose MSHA from
correcting its error by issuing a written citation in the future. Id .

Similar to Dittrich , the
operator here claims not to have received a written citation for the
assessment, and the Secretary failed to provide sufficient evidence of a
citation. The only document in the record which might support the issuance of a
written citation is an internal MSHA document, MSHA’s special assessment for violation
No. 6559330. Although the special assessment contained information for
violation No. 6559330 such as the alleged level of negligence, such internal
MSHA documentation is insufficient to infer the issuance of a written citation.
See MTR, Ex. A. at 5.

Under Dittrich, 32 FMSHRC at
1600, the proposed assessment for the violation in this case is not effective. Therefore,
we cannot find that the assessment for violation No. 6559330 ever became a
final Commission order.

Consequently, we conclude that
there is no final order in this case, and we dismiss the operator’s request to
reopen as moot. [3]
MSHA may issue another proposed penalty assessment once it has complied with
the requirements of section 104(a). [4]

/s/ William I.
Althen

William I.
Althen, Commissioner

/s/ Marco M.
Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Commissioner

Chair Traynor, dissenting,

Westfall Aggregate & Materials,
Inc., filed its motion to reopen Citation No. 6559330 and the associated civil
penalty almost eight years after it became a final order of the
Commission. Rule 60(c) of the Federal Rules of Civil Procedure provides that a
motion to reopen shall be filed not more than one year after the judgment was
entered. [5]
Westfall’s motion was filed well out of time and thus should be denied. See,
e.g ., Wayne J. Sand & Gravel Inc. , 43 FMSHRC 386, 387 (Aug.
2021) (denying a motion filed more than 16 months after the issuance of a
default order as untimely filed). My colleagues tacitly acknowledge that the
motion to reopen is time-barred, as they do not consider any of the operator’s
arguments for relief pursuant to Rule 60(b), i.e., mistake, inadvertence or
excusable neglect. Instead, my colleagues conduct an alternative analysis for
relief de novo , from which I dissent.

The majority finds that the Mine
Safety and Health Administration (“MSHA”) failed to issue Citation No. 6559330
in writing to Westfall as required by section 104(a) of the Mine Act, 30 U.S.C.
§ 814(a) (requiring that “each citation shall be in writing”). But this finding
is very clearly wrong.

My colleagues’ analysis contains
multiple errors. First and foremost, Westfall never argues in its motion that
the Secretary failed to issue a citation as required by section 104(a) of the
Mine Act. Second, my colleagues do not establish that the Commission has
jurisdiction to consider such a claim, had it been presented. Finally, Westfall
unambiguously concedes that it received a copy of Citation No. 6559330 in
writing, attaching it as an Exhibit to its pleadings .

A.        Westfall does not
claim that MSHA failed to issue the citation in writing.

Westfall does not claim that MSHA
failed to issue Citation No. 6559330 in writing and did not raise non-issuance
in its motion. [6]
Westfall’s actual argument as articulated in its motion is more nuanced. Westfall
states that MSHA’s issuance of the written citation in an atypical form
confused its staff and contributed to their failure to timely file contest of
the penalty. Mot. at 4. Specifically, Westfall argues that MSHA’s decision to
issue a specially assessed penalty rather than to regularly assess the civil
penalty and the absence of a standard MSHA Citation/Order contributed to the
confusion. [7]
Id . Westfall further avers that its inexperience with special assessments
“resulted in inadvertent and mistaken interpretation and treatment” of

the citation, which would justify reopening the penalty
pursuant to Rule 60(b). [8]
Id . at 5. My colleagues inappropriately transform this Rule 60(b)
argument into a claim that MSHA failed to issue the citation “in writing” as
required by section 104(a) of the Mine Act.

Again, Westfall does not argue that
the form of the citation it received with the penalty assessment failed
to comply with the requirements of section 104(a) of the Mine Act.

B.        The Commission does
not have jurisdiction to issue the majority decision.

The majority asserts that it has
jurisdiction to consider this matter pursuant to the Commission’s jurisdiction
to reopen final orders. Slip op. at 1 ( citing Federal Rule of Civil
Procedure 60(b)); see Monterey Coal Co ., 15
FMSHRC 997 (June 1993) (“we hold that the Commission possesses jurisdiction to
reopen final orders”). Yet, their conclusion that “there is no final order in
this case” appears to contradict their initial assertion that the Commission
possesses jurisdiction in this matter to consider a motion to reopen a final
order. Slip op. at 3. My colleagues do not explain this apparent discrepancy. [9]

As an administrative agency created
by statute, the Commission cannot exceed the jurisdictional authority granted
to it by Congress. Kaiser Coal Corp ., 10 FMSHRC 1165, 1169 (Sept. 1988);
Santa Fe Indus., Inc. v. Green , 430 U.S. 462, 472-73 (1977); Civil Aeronautics
Bd. v. Delta Airlines , 367 U.S. 316, 322 (1961). Specific provisions of the
Mine Act delineate the scope of the Commission’s jurisdiction and it does not
possess plenary authority to review all enforcement actions. Pocahontas Coal
Co ., 38 FMSHRC 176, 181 (Feb. 2016).

C.        Westfall concedes that
it received the citation in writing.

The majority ultimately concludes
that because Westfall did not receive Citation No. 6559330 “in writing” as
required by section 104(a) of the Mine Act, 30 U.S.C. § 814(a), it is not a
final order of the Commission. The majority relies on Dittrich Mechanical
& Fabrication, Inc. , 32 FMSHRC 1599, 1600 (Dec. 2010), in which the
Commission held that absent evidence that the citations were ever issued to
Dittrich, there was no final order. [10]

The case at hand is readily
distinguishable from Dittrich . Westfall concedes that it received a
citation in writing from MSHA , attaching a copy of the citation as Exhibit
A to the instant Motion filed with the Commission . Mot. at 1 (“A copy of
Citation No. 6559330 is attached hereto as Exhibit A”); Mot. at 3 (“Citation
[No.] 6559330 was received approximately five (5) months after [Order No.]
6559329”). Additionally, the record also contains a copy of Order No. 6559329
which states that “Citation No. 6559330 is being issued in conjunction with
this order.” Westfall Ex. B. The order and citation were issued after an MSHA
inspector observed a crane operating at the mine without service brakes. Id .;
Westfall Ex. A [11] .

Furthermore, this proceeding, unlike Dittrich ,
involves the issuance of a specially assessed penalty. Typically, the Secretary
of Labor proposes civil penalties pursuant to his regulations at 30 C.F.R. §
100.3. If the Secretary determines that conditions warrant a specially assessed
penalty, he may waive the regular assessment process. 30 C.F.R. § 100.5(b). For
special assessments, “[a]ll findings shall be in narrative form.” 30 C.F.R. §
100.5(b). The Secretary’s narrative findings for the citation and special
assessment received by Westfall in this proceeding contain all the information
that MSHA is required to provide according to section 104(a), 30 U.S.C. 814(a),
of the Mine Act (“Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the
provision of the Act, standard, rule, regulation, or order alleged to have been
violated.”). For example, the document alleges, in part, that: Westfall
violated the mandatory safety standard at 30 C.F.R. 56.14101(a)(1), the
Secretary believes that Westfall exhibited a moderate degree of negligence, and
the gravity of the violation was serious. Thus, the record demonstrates that
the Secretary’s section 104(a) obligations were fully satisfied.

In Dittrich , the only
evidence that a citation had been issued was a print-out from MSHA’s website. 32
FMSHRC at 1601. The Commission found that “internal MSHA documentation
regarding the violations” does not evidence that the citations were issued to
the operator. Dittrich, 32 FMSHRC at 1600, 1600 n.1. Here, of course,
the operator concedes that it was issued the narrative findings for a specially
assessed penalty. Westfall Ex. A at 5. My colleagues wrongly assert that the
special assessment is “an internal MSHA document.” Slip op. at 3. The record
reflects not only that the document was issued to Westfall as required by 30
C.F.R. § 100.5, but also that it was received and signed for by Westfall. Westfall
Ex. A; Sec’y Ex. A.

Accordingly, the record establishes
that a citation was validly issued pursuant to section 104(a) of the Mine Act,
there is a final order, and the motion to reopen was filed out of time. Thus, I
dissent.

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Chair

Distribution (e-mail):

Cary W. Purcell, Esq.

Attorney for Westfall Aggregate & Materials, Inc.

19334 Hopewell Road

Mount Vernon, OH, 43050

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

Division of Mine Safety and Health

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge Glynn 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]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

[1]
Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b)
motion must be made within a reasonable time, and for reasons of mistake,
inadvertence, or excusable neglect, not more than one year after the judgment,
order, or proceeding was entered or taken. Fed. R. Civ. P. 60(c).

[2]
The operator does concede that it incorrectly placed the penalty assessment for
violation No. 6559330 in its closed file for Order No. 6559329. The operator
states that this occurred because the assessment paperwork received by the
operator did not include an actual citation, therefore the matter was not
flagged as an active citation requiring attention. The assessment provided as
an exhibit by the operator includes the standard cover letter and narrative
findings (which reference the citation), but not the citation form itself. Mot.
at 2; Ex. A.

[3]
Similarly, the Commission has routinely found it appropriate to dismiss motions
to reopen as moot where there was no final order because the operator did not
receive the proposed assessment. E.g. , Double Bonus Coal Co. , 31
FMSHRC 358 (Mar. 2009); Cumberland Coal Res. , 38 FMSHRC 2502 (Oct. 2016);
Delhur Indus., Inc. , 43 FMSHRC 396 (Aug. 2021).

[4]
We note that the alleged violation is more than a decade old. We express no
opinion on how this long passage of time might affect a proceeding, if the
Secretary chooses to wake the violation from its sleep.

[5]
“The Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure.” 29 C.F.R. § 2700.1(b).

[6]
Accordingly, the Secretary did not have notice that the issue was before the
Commission.

[7]
Westfall claims inter alia that the five-month gap in time between the
issuance of the associated Order No. 6559329 and the specially assessed penalty
for the subject citation also contributed to its confusion and mistake. Mot. at
4.

[8]
MSHA’s regular and specially assessed penalty proposal regulations are
available at 29 C.F.R. Part 100. According to 29 C.F.R. § 100.5, “MSHA may
elect to waive the regular assessment under § 100.3 if it determines that
conditions warrant a special assessment” and may issue a penalty in an
alternative narrative form.

[9]
Furthermore, the motion to reopen was filed well beyond Rule 60(c)’s one year
limit. 

[10]
The Commission did not explain its jurisdictional authority in Dittrich
either; however, the subject motion to reopen in that case was not filed out of
time.

[11]
Citation No. 6559330 attached to Westfall’s instant Motion as Exhibit A
states in pertinent part:

On February 28, 2011, MSHA issued
Section 104(a) Citation 6559330 at the Hill Road Pit. Westfall Aggregate &
Materials, Incorporated, was cited for a violation of 30 CFR 56.14101(a)(1).

This citation was issued in
conjunction with 107(a) Imminent Danger Withdrawal Order 6559229 dated February
28, 2011.

The gravity of the violation was
considered serious.

The violation resulted from the
operator’s moderate degree of negligence.

The number of previously assessed
violations and inspection days at this mine, and the size of the mine and
company appear on the attached Proposed Assessment.

Based on the six criteria set forth in
30 CFR 100.3(a) and the information available to the Office of Assessments, it
is proposed that Westfall Aggregate & Materials, Incorporated, be assessed
a civil penalty of $16,400.  

Westfall Ex. A (issued July 14,
2011).