Secretary of Labor v. Select Materials

Plain-English summary

Select Materials said it never received a proposed assessment and first learned of the penalties when MSHA hand-delivered a collection letter. Postal records showed that certified delivery had been attempted at the operator's correct Ohio address and that multiple notices went uncollected before the package was returned. The operator did not explain why it failed to collect the mail, describe its normal assessment-handling process, or account for its delay after an earlier delinquency notice. The Commission found no good cause and denied reopening with prejudice. Select Materials later paid the penalties after MSHA issued a nonpayment citation.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen was denied with prejudice.
• Key point: Ignoring repeated certified-mail notices and failing to explain internal handling procedures does not support reopening.

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 : Docket No. LAKE
2023-0148

ADMINISTRATION (MSHA), : A.C. No. 33-01355-564439

                                                                    :

v. :

:

SELECT MATERIALS :

                                                                    :

BEFORE: Jordan,
Chair; Althen, Rajkovich, and Baker, 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 April 11, 2023, Select Materials filed a
motion to reopen the captioned case which had become a final order of the
Commission pursuant to section 105(a) of the Mine 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).

        Select

Materials filed a pro se motion to reopen, contending that it did not
receive the proposed assessment in the mail. The motion states that on March
14, 2023, the mine operator was first notified that it owed penalties when an
MSHA inspector hand-delivered a delinquency letter to its mine site. [1]

        The

Secretary opposes reopening these final orders. The Secretary demonstrates the
U.S. Postal Service (“USPS”) originally attempted to deliver the proposed
assessment via certified mail on October 8, 2022 to the operator’s address of
record in Howard, Ohio. Thereafter, the operator was sent multiple notices
indicating that the USPS was attempting to deliver certified mail. Sec’y Ex. B.
On October 31, 2022, USPS returned the item to its sender after it went
uncollected.

On January 20, 2023, the
Secretary claims she sent the operator a delinquency notice. The Secretary then
later hand-delivered a letter warning the operator that the Secretary would
take additional enforcement actions if the operator did not remit payment of
the penalties within 30 days. On April 10, 2023, MSHA issued the operator a
citation alleging a failure to pay the penalties. [2]
On April 11, 2023, the operator filed the subject motion to reopen.

After considering the
operator’s motion and the Secretary’s opposition to that motion, we conclude
that the operator has failed to fulfill its burden to demonstrate that its
failure to timely file to contest was the result of a mistake, excusable
neglect, or some other good cause reason.

The Commission requires that:

An operator seeking to reopen a proceeding after a
final order is effective bears the burden of establishing an entitlement to
extraordinary relief. At a minimum, the applicant for such relief must provide
all known details, including relevant dates and persons involved, and a clear explanation
that accounts, to the best of the operator's knowledge, for the failure to
submit a timely response and for any delays in seeking relief once the operator
became aware of the delinquency or failure. The operator must also identify which
specific citations or orders in the assessment it wishes to contest upon
reopening. Affidavits from persons involved in and knowledgeable of the
situation and pertinent documents should be included with the request to reopen.

Higgins
Stone Co., Inc ., 32 FMSHRC 33, 34
(Jan. 2010). Select Materials motion does contain the aforementioned
information. The operator does not account for its failure collect the
certified mailings after receiving multiple notices, including a notice that
indicated that MSHA was attempting to deliver a package. [3] Furthermore, the operator’s motion completely lacks a
description of its normal personnel and processes used to receive and contest proposed
assessments. Accordingly, it does not demonstrate that the failure to contest
was not due to its own inadequate or unreliable procedures. [4] Finally, the operator’s motion does not explain its
delay in seeking to reopen after receipt of the January delinquency letter.

        Because

we conclude that the operator’s failure to contest was not the result of a good
cause, its 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

Distribution:

Ronald Karns

Production Manager

26900 Coshocton Rd.

Howard, OH 43028

[email protected]

Emily Toler Scott, Esq.

Counsel, Appellate Litigation

Division of Mine Safety and Health

Office of the Solicitor

U.S. Department of Labor

201 12th Street South – Suite 401

Arlington, VA 22202-5450

[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]

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] The operator states that the letter contained an
unfamiliar address and person in Texas; it speculates that these errors may
have contributed to its failure to receive the original proposed assessment. There,
however, is no evidence that the proposed assessment was mailed to the Texas
address. To the contrary, the Secretary has provided detailed postal records
demonstrating that delivery of the proposed assessment was attempted to the
operator’s correct address in Howard, Ohio. Sec’y Ex. B.

[2] On April 25, 2023, after receiving the citation, the
operator paid the civil penalties.

[3] The Secretary
notes that “[c]ertified Mail from MSHA almost certainly contains proposed
penalty assessments.” It is well
recognized that a movant’s good faith or lack thereof is an important factor in
determining whether good cause exists to reopen a final order. See, e.g. ,
Stone Zone , 41 FMSHRC 272, 274 (June 2019) (citations omitted).

[4] The Commission has made it clear that where a failure
results from an inadequate or unreliable internal processing system, the
operator has not established grounds for reopening the assessment. Oak Grove
Res., LLC , 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co ., 32
FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co ., 31 FMSHRC 1313,
1315 (Nov. 2009); Pinnacle Mining Co ., 30 FMSHRC 1066, 1067 (Dec. 2008);
Pinnacle Mining Co ., 30 FMSHRC 1061, 1062 (Dec. 2008)