Secretary of Labor v. S&G Excavating, Inc.

Plain-English summary

S&G Excavating mailed two penalty contests with its payments for uncontested penalties to MSHA's payment lockbox instead of the contest office. It sent the paperwork about three weeks before the deadline, then sought MSHA guidance and moved to reopen within a month after receiving delinquency letters. The Secretary did not oppose and noted that these were the mines' first delinquencies in 20 years. The majority found inadvertence and good faith, reopened both assessments, and remanded them. Commissioner Marvit dissented because he believes the Commission lacks authority to reopen section 105(a) final orders.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Both penalty assessments were reopened and remanded, over one Commissioner's dissent.
• Key point: Timely but misaddressed contests, a clean filing history, and prompt follow-up supported 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       

ADMINISTRATION
(MSHA), 

v. 

S&G
EXCAVATING, INC.

Docket
No. LAKE 2025-0122

A.C.
No. 12-02362-605047

Docket
No. LAKE 2025-0123

A.C.
No. 12-02196-605043

BEFORE:  Jordan,
Chair; Baker and Marvit, Commissioners

ORDER

BY: Jordan, Chair,
and Baker, Commissioner

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2024) (“Mine Act”). On October 15, 2024, the Commission received
from S&G Excavating, Inc. (“S&G”) a motion seeking to reopen two penalty
assessments that had become final orders of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

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 assessments were delivered on October 15, 2024, and
became final orders of the Commission on November 14, 2024. Delinquency letters
for both assessments were mailed on December 30, 2024.

Contest paperwork must be mailed to MSHA’s
Civil Penalty Compliance Office in Washington, D.C. or emailed to
[email protected], while payments for uncontested citations must be
mailed to MSHA’s Lock Box in St. Louis, Missouri. Here, S&G asserts that it
mailed “all relevant information,” i.e., its penalty contests and its payment
for the uncontested penalties, to the St. Louis address. S&G asserts that
it discovered the issue upon receiving the December delinquency letters. The
operator called the Civil Penalty Compliance Office for further guidance on
January 16, 2025, and moved to reopen on January 24, 2025.

The Secretary does not oppose S&G’s
request to reopen. She further notes that these delinquencies were the mines’
first in 20 years of operation, that the operator made timely payment for the
uncontested penalties, and that the operator acted promptly upon receiving the
delinquency letters.

We note that S&G attempted to timely
contest the proposed assessments. Records provided by the Secretary indicate
that S&G mailed its paperwork to the St. Louis address on or about October
22, 2024, approximately three weeks before the assessments became final. [2]
We also note that the operator proactively sought guidance from MSHA, and moved
to reopen the assessments less than one month after receipt of the delinquency
letters. 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 file a notice of contest have presumptively been filed within
a reasonable amount of time). Finally, as the Secretary notes, the
operator does not have a history of untimely contests or delinquencies.

Having
reviewed S&G’s request and the Secretary’s
response, we find that S&G’s failure to timely contest the
assessments was the result of inadvertence. We also note that the operator
acted in good faith by timely filing its requests to reopen. In the interest of justice, we hereby reopen these
matter and remand them 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 petitions 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 orders 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:

Richard
Monday

Health
& Safety Director

S&G
Excavating, Inc.

545
E. Margaret Drive

Terre
Haute, IN 47802

[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 N4420-N4430  

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] For the limited
purpose of addressing these motions to reopen, we hereby consolidate Docket No.
LAKE 2025-0122 and Docket No. LAKE 2025-0123 involving similar procedural
issues. 29 C.F.R. § 2700.12. S&G seeks to reopen three of the eight
citations in Docket No. LAKE 2025-0122, and 18 of the 20 citations in Docket
No. LAKE 2025-0123.

[2] S&G
represents that its contest form was mailed with its payment for the
uncontested penalties, and documentation provided by the Secretary reflects
that the check used to pay the uncontested penalties was dated October 22 and
processed by MSHA on October 29.