Secretary of Labor v. Brand Industrial Services, LLC

Plain-English summary

A Brand employee mistakenly routed the proposed assessment to the wrong department. Brand attempted to contest the assessment five days after the deadline and then promptly filed a reopening motion. The Secretary opposed relief and argued that the company had unreliable procedures. The Commission found that the detailed explanation, short delay, and prompt follow-up showed excusable neglect and good faith rather than a systemic failure. It reopened the assessment and remanded the case; Commissioner Marvit concurred based on the Commission's historical treatment of similar facts.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: A clearly explained routing mistake may be excused when the contest is only days late and the operator promptly seeks relief.

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.

BRAND
INDUSTRIAL SERVICES, LLC

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Docket
No. LAKE 2024-0155

A.C.
No. 12-00064-593013

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

ORDER

BY: Jordan, Chair;
Althen, Rajkovich, and Baker 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 April 9, 2024, the Commission received
from Brand Industrial Services, LLC (“Brand”) a motion to reopen a final order
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 30,
2024, and became a final order of the Commission on February 29, 2024, after Brand
did not contest the penalties.

On
March 5, 2024, Brand emailed MSHA and attempted to contest the proposed
assessment. MSHA rejected Brand’s contest because it was filed five days late.
Thereafter, on April 9, 2024, Brand filed the subject motion to reopen.

Brand alleges that it failed to timely
contest the assessment because an employee mistakenly misrouted the assessment
to an incorrect department. Brand alleges that this initial mistake was
compounded because MSHA did not provide the company with copies of the
citations until February 20, 2024, when MSHA forwarded it a duplicate copy of
the assessment.

The
Secretary opposes reopening, stating that the citations were properly issued to
the operator. The Secretary states that the operator’s abatement of the
violative conditions identified in the citations indicates that the operator
received the citations upon issuance. Furthermore, the Secretary alleges that
her records indicate that the assessment was properly delivered and signed for.
The Secretary also alleges Brand’s motion fails to address why it did not
contest the assessment after MSHA forwarded it the duplicate copy.[1]
The Secretary maintains that the facts indicate that the company has inadequate
or unreliable internal procedures.

When filing a motion to reopen before the
Commission the operator bears the burden of showing exceptional circumstances.
Lone Mountain Processing, Inc., 35 FMSHRC 3342, 3345 (Nov. 2013). “[T]he
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. . . .” Lone Mountain, 35 FMSHRC at 3345 (citing Higgins
Stone Co., 32 FMSHRC 33, 34 (Jan. 2010)).

However, it is also well established that
an inadequate or unreliable internal processing system does not constitute
inadvertence, mistake or excusable neglect so as to justify the reopening of an
assessment which has become final under section 105(c) of the Mine Act. Pinnacle
Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co.,
30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC 1313,
1315 (Nov. 2009): Double

Bonus
Coal Co.,
32 FMSHRC 1155, 1156 (Sept. 2010); Elk Run Coal Co., 32 FMSHRC 1587,
1588 (Dec. 2010).

We
conclude that, in this instance, the initial mishandling of the assessment and
the resulting missed filing deadline was the result of excusable neglect and not
the result of an unreliable internal processing system. Brand provided a clear
and detailed explanation of its error and its belated attempt to file. In finding
good cause for its failure to timely contest, we rely upon the operator’s
attempt to file only five days after the filing deadline and upon the
operator’s prompt filing of a motion to reopen. An operator’s good faith efforts
militate in favor of reopening. See, e.g., Stone Zone, 41 FMSHRC 272,
274 (June 2019) (“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.”).[2]

In the
interest of justice, we hereby reopen the captioned assessment and remand the
matter 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

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit concurring,

Though I am in
agreement with the arguments contained in the Secretary’s Motion in Opposition,
I concur in the decision to reopen this case. I do so out of fairness to the
operator because the Commission has historically granted reopening based on
facts similar to those contained here. Absent this history, I would have voted
to deny reopening.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Patrick
J. Veters, Esq.

Marion
Strauss, Esq.

Jones
Walker LLP

201
St. Charles Avenue, 50th Floor

New
Orleans, LA 70170

[email protected]

[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] The Secretary states
that the duplicate copy was provided to the operator by email after an
additional copy of the assessment, mailed to a miner’s representative, was
returned to MSHA as “undeliverable.” Sec’y Resp. at 3.

[2] On May 23, 2024,
Brand filed a motion for leave to file a reply to the Secretary’s response. We
hereby GRANT Brand’s motion for leave. We have considered Brand’s reply.