Secretary of Labor v. Georgetown Sand & Gravel, Inc.

Plain-English summary

A proposed assessment reached Georgetown's post office box on a Saturday, and the company retrieved it the following Monday. Georgetown filed its contest 30 days after retrieval, but MSHA treated the assessment as final based on the Saturday delivery date. The Commission majority held that the company explained the two-day retrieval delay but not why that delay caused a late contest. It denied reopening without prejudice, allowing Georgetown to refile with more information before the one-year deadline. Chair Jordan dissented, concluding that the contest was timely because section 105(a) requires certified-mail receipt, or alternatively that the delivery circumstances and prompt response established good cause.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Reopening was denied without prejudice, with a deadline stated for an amended request.
• Key point: A reopening motion must connect the delivery circumstances to the missed contest deadline with a complete explanation.

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.

GEORGETOWN
SAND & GRAVEL,

INC.

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Docket
No. PENN 2024-0008

A.C.
No. 36-05205-584939

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

ORDER

BY: Baker and
Marvit, 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 November 2, 2023, the Commission received
from Georgetown Sand & Gravel, Inc. (“GS&G”) 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 to the Post Office where
the operator receives mail on September 23, 2023, and became a final order of
the Commission on October 23, 2023.

GS&G
asserts that it retrieved the proposed assessment from the Post Office on
Monday, September 25, and filed its contest of the proposed penalty 30 days
later on October 25. GS&G notes that it could not have retrieved the
assessment earlier than September 25, because the mine does not operate on
Saturdays and the Post Office is closed on Sundays. Finally, GS&G asserts
that contrary to MSHA’s usual practices, the assessment package was not sent
via ‘certified’ mail. The Secretary opposes the motion to reopen. She primarily
asserts that the operator has failed to explain why its contest was not timely filed
or how the asserted non-certified delivery impacted GS&G’s ability to
timely process the assessment.[1]

An operator seeking to reopen a final
penalty bears the burden of showing that it is entitled to such relief. In
addition to providing all known details, including relevant dates and persons
involved, the operator must provide a clear explanation that accounts for the operator’s
failure to timely contest the assessment. Higgins Stone Co., 32 FMSHRC
33, 34 (Jan. 2010). Here, GS&G has not explained why its contest was not
timely. The operator has explained why the assessment was retrieved two days
after it was delivered, but has not explained why a delay in retrieving
the assessment resulted in a delay in contesting the assessment.

GS&G has not adequately justified its
failure to timely contest the proposed assessment. Accordingly, GS&G’s
motion to reopen is DENIED WITHOUT PREJUDICE. This means we have denied the
motion, but the operator may refile the motion with additional information.

We note that motions to reopen must be
made no more than a year after the relevant order has become final. Fed. R.
Civ. P. 60(c). Here, the proposed assessment became final on October 23, 2023. Accordingly,
the one year period for filing any amended request to reopen the assessment
expires on October 23, 2024.

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Chair
Jordan, dissenting:

I
dissent from the majority’s decision. I would find, based upon the asserted
facts and pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a), that
the proposed civil penalty assessment became a final order of the Commission on
October 25, 2023. Accordingly, the operator’s filing to contest the penalties
with MSHA, on October 25, 2023, was timely submitted.

In the alternative, even assuming that the
assessment became final on October 23, 2023, as my colleagues conclude, I would
find that the operator has asserted a good cause reason for the late filing.

1. The
   assessment became a final order of the Commission on October 25, 2023.

Section 105(a) of the Mine Act requires
that the Secretary issue proposed civil penalty assessments “by certified mail”
and provides the operator “30 days from the receipt of the notification
issued by the Secretary” to contest the civil penalties. 30 U.S.C. § 815(a)
(emphasis added). Certified mail requires a signature from the recipient.[2] Therefore,
according to the plain language of section 105(a), receipt of the proposed
assessment is effective upon signed receipt.

Here, the record reflects that the proposed
assessment was delivered to the operator’s post office box on Saturday,
September 23, 2023. The operator asserts and the Secretary’s exhibit reflects
that it received the assessment on Monday, September 25, 2023. Accordingly, the
operator had until October 25, 2023, to timely contest the assessment. The
Secretary improperly rejected the operator’s attempt to contest the penalties
on October 25.

The Secretary misconstrues the
requirements of the Mine Act, and the operator’s motion, when she contends that
the operator fails to assert how the method of delivery contributed to GS&G’s
failure to contest within 30 days of the assessment’s arrival. Sec’y Resp. at

6. GS&G’s motion asserts that it believed that it had filed to contest the
   penalties “within the allowable timeframe” when it filed to contest within 30
   days of its receipt of the assessment. Mot. at 2.

7. GS&G’s
   motion asserts good cause for its failure to timely file.

Even assuming that the majority is correct,
and receipt was effective pursuant to section 105(a) on September 23, 2023, I
would find that the operator alleged a good cause reason for its subsequent
late filing.

The operator’s motion asserts that it
believed that the assessment became a final order on October 25, 2023, because
of the circumstances surrounding the receipt of the assessment. Mot. at 2
(asserting that the notice of contest was submitted “within the allowable
timeframe”). GS&G further contends that the date of delivery, September 23,
2023, was a Saturday, a day the mine does not operate. Furthemore, the post
office branch closes at 12:00 p.m. on Saturdays. Mot. at 1. Finally, GS&G
asserts that the assessment was delivered without the “required [ ] signature
of receipt.” Mot. at 2.

Additionally, the mine operator filed this
motion to reopen only eight days after MSHA rejected its attempt to contest the
penalties. The Commission has held that 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.”)

Accordingly, I would conclude that the
operator has sufficiently asserted that the dates and method of delivery,
including the lack of signature service, created confusion regarding the date
the notice of contest was due and the resulting delay in timely filing was the
result of a good cause reason. The Commission has routinely granted motions to
reopen alleging similar mistakes. See, e.g., Brand Industrial
Services, LLC, No. LAKE 2024-0155 (July 24, 2024) (“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.”).

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

Distribution:

David
M. Bryan, President

Georgetown
Sand & Gravel Inc.

Box
127

Georgetown,
PA 15043

[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
does not expressly admit or deny GS&G’s assertion that the assessment was
sent via non-certified mail. We note that the requirement for the Secretary to
send proposed assessments by cerified mail is not optional. 30 U.S.C. § 815(a).

[2]
Certified
Mail – The Basics,
USPS (Aug. 2024), https://faq.usps.com/s/article/Certified -Mail-The-Basics.