Secretary of Labor v. Carmeuse Lime and Stone, Inc.

Plain-English summary

Carmeuse consistently marked and identified an eighth citation for contest, but conflicting counts in its emails led counsel's paralegal to prepare a form covering only the first seven marked citations. The paralegal found the omission immediately upon receiving the penalty petition, and counsel moved to reopen within a month. The Secretary did not oppose and noted timely payment, prompt action, and new review procedures. The majority found excusable mistake and good faith, reopened the omitted citation, and remanded it. Commissioner Marvit dissented because he believes the Commission lacks reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The omitted citation's penalty assessment was reopened and remanded, over one Commissioner's dissent.
• Key point: Consistent written evidence of intent, prompt discovery, and corrective review procedures supported relief from a clerical omission.

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. 

CARMEUSE
LIME AND STONE, INC.

Docket
No. LAKE 2024-0255

A.C.
No. 12-00426-600941  

BEFORE:  Jordan,
Chair; Baker and Marvit, Commissioners

ORDER

BY: Jordan, Chair,
and Baker, Commissioner

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On September 3, 2024, the Commission received
from Carmeuse Lime and Stone, Inc. (“Carmeuse”) 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).

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 on June 12, 2024. Carmeuse
timely contested seven of the forty-three citations listed in the assessment. [1]
The assessment associated with the remaining thirty-six citations became a
final order of the Commission on

July 12, 2024. Carmeuse now seeks to reopen Citation No. 9781125. [2]

Carmeuse asserts that it always intended
to contest Citation No. 9781125, but the citation was inadvertently omitted due
to a mistake by outside counsel. Carmeuse explains that on June 20, 2024, its
Senior Area Health and Safety Manager emailed its outside counsel a draft
contest form with eight citations marked for contest. The accompanying email
mistakenly stated that six citations were to be contested and attached copies
of seven citations, and a subsequent email on the same day incorrectly confirmed
a list of seven citations. Nevertheless, the communications consistently
identified Citation No. 9781125 for contest. On June 26, outside counsel forwarded
the June 20 communications to a paralegal and, based on those communications, instructed
the paralegal to prepare a contest for seven citations. Accordingly, the
paralegal checked the contest boxes for the first seven citations marked
on the June 20 draft contest form and filed the notice of contest. He did not
see that an eighth citation (No. 9781125) had been marked for contest because
it was on a different page.

Carmeuse further states that the paralegal
received the Penalty Petition for the seven timely contested citations on
August 12, 2024, compared it against the earlier communications, and
immediately notified outside counsel that Citation No. 9781125 had been omitted.
Outside counsel confirmed with Carmeuse’s Safety Manager that he had intended
to contest the citation and moved to reopen on September 3, 2024. Carmeuse represents
that, in the future, its outside counsel will review all contest forms
completed by office staff before they are sent to MSHA.

The Secretary does not oppose Carmeuse’s request
to reopen. She notes that the operator timely filed its contest, made timely
payment for the uncontested citations, moved to reopen within a reasonable
period of time, and has taken measures to ensure the situation will not recur.

An operator’s clear intent to contest a
citation is relevant to whether good cause exists to reopen an assessment. E.g. ,
Dyno Nobel , 46 FMSHRC 397, 398 (June 2024); U.S. Silica Co. , 39
FMSHRC 1787, 1788 (Sept. 2017). Here, Carmeuse consistently expressed an intent
to contest Citation No. 9781125 when communicating with its counsel: the
citation was checked on the draft contest form, attached to the first June 20
email, and listed in the follow-up June 20 email. Additionally, counsel timely
contested the assessment. If not for the numerical inconsistencies in
Carmeuse’s emails (which understandably confused counsel and his office staff),
Citation No. 9781125 would have been included in the operator’s timely contest.

We also note that the counsel and his
staff promptly identified the error and moved to correct it. The Penalty
Petition for the timely contested citations was served on the operator on
August 12, 2024. The paralegal reviewed it and noted the inconsistency that day,
and counsel moved to reopen within the month. Highland Mining Co. , 31
FMSHRC 1313, 1316-17 (Nov. 2009) (motions received within 30 days of an
operator’s first notice from MSHA that it has failed to timely contest have
presumptively been filed within a reasonable amount of time).

Having
reviewed Carmeuse’s request and the Secretary’s
response, we find that the operator’s failure to timely contest the
assessment was the result of excusable mistake. [3]
We also note that Carmeuse acted in good faith by promptly identifying the
error and moving to reopen. In the interest of
justice, we hereby reopen 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/ 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 , 46 FMSHRC
965 (Dec. 2024), 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. The Commission’s repeated invocation of Federal Rule of Civil
Procedure 60(b) cannot overcome the statutory language. However, in Belt
Tech , I explained in my concurrence that “the Act clearly states that to
become a final order of the Commission, the operator must have received the
notification from the Secretary.” 46 FMSHRC 975, 977 (Dec. 2024) (citing
Hancock Materials, Inc. , 31 FMSHRC 537 (May 2009)). Taken together, these
opinions stand for the proposition that the Commission may not reopen final
orders under its statutory grant, but an operator may proceed if it has not
properly received a proposed order.

In the instant case, as the Majority
recounts, the Commission’s order became final under the language of section
105(a). 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

Distribution:

Arther
M. Wolfson, Esq.

Fisher
& Phillips LLP

Six
PPG Place, Suite 830

Pittsburgh,
PA 15222

[email protected]

Thomas A. Paige, Esq.  

Office of the Solicitor  

U.S. Department of Labor  

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]  

Chief
Administrative Law Judge Glynn F. Voisin

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]

[1] Commission
proceedings have since been initiated for the timely contested citations (Docket
No. LAKE 2024-0226).

[2] The Secretary represents
that Carmeuse paid the uncontested portion of the assessment on June 26, 2024, and
that MSHA applied part of that payment to Citation No. 9781125 as an
“administrative function.” While the citation that Carmeuse now seeks to reopen
has technically been paid, the Secretary represents that MSHA’s administrative application
of Carmeuse’s lump sump payment does not appear to show the operator’s intent
to pay the penalty for this specific violation. Resp. at 2 n.2.

[3] We note that the
excusable mistake by outside counsel and his staff (omitting Citation No.
9781125 from the contest form) appears to have at least partly originated with typographical
error(s) by the operator’s staff (misstating the number of citations). Carmeuse’s
outside counsel has represented that he will conduct more stringent oversight
to ensure the accuracy of future contest forms. Carmeuse should also take steps
to ensure its staff gives proper attention to future communications regarding
proposed assessments, as repeated typos may indicate general carelessness or an
unreliable internal processing system and may result in denial of future
motions. See GCC Dacotah, Inc. , 46 FMSHRC 628, 29 (Aug. 2024).