Secretary of Labor v. Dyno Nobel

Plain-English summary

Dyno Nobel received a proposed assessment during the holiday period while personnel were absent and offices were closed. The assessment was not forwarded to counsel, and staff also confused the citation with a related citation issued on the same date. The company discovered the final order by proactively checking MSHA's data system. The Secretary did not oppose relief but urged better controls. The Commission found administrative error and inadvertent mistake, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: Holiday staffing shortages and confusion between related citations supported reopening when the operator found the error through proactive monitoring.

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.

DYNO
NOBEL

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:

:

:

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Docket
No. SE 2023-0081

A.C.
No. 40-02964-566985

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 January 18, 2023, the Commission received
from Dyno Nobel 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 December 2, 2022, and
became a final order of the Commission on January 2, 2023. Dyno Nobel asserts
that it’s failure to timely contest the proposed assessment arose from
administrative error and inadvertent mistake. It claims that it received the
assessment during the holiday period, but that personnel were absent, and their
offices were closed. As a result of insufficient staffing, the assessment was
inadvertently not forwarded to Dyno Nobel’s counsel for a timely filing of the
contest. The citation was also mistaken for another, related citation that had
been issued on the same date. According to the operator, the error was
discovered after proactively checking MSHA’s data retrieval system and finding
that the final order was issued in its case. The Secretary does not oppose the
request to reopen, but urges the operator to take steps to ensure that future
penalty contests are timely filed.

        Having

reviewed Dyno Nobel’s request and the Secretary’s response, we find
that the operator’s failure arose from administrative error and inadvertent
mistake due to the insufficient staffing, closures, and confusion from the
other citation issued on the same date. 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/ 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:

Adele
L. Abrams, Esq. CMSP

Law
Office of Adele L. Abrams, P.C.

4740
Corridor Place, Suite D

Beltsville,
MD 20705

[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

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]