Secretary of Labor v. Lopke Quarries, Inc.

Plain-English summary

Lopke Quarries said it mailed contest forms with penalty payments to MSHA's payment center and later mistakenly sent its first reopening request to MSHA instead of the Commission. The company received delinquency notices in April and May and a scofflaw letter in July, but did not contact MSHA until August or file with the Commission until September. It sought relief only after MSHA issued an enforcement citation directing payment or an installment agreement. The Commission found that the repeated procedural mistakes suggested an unreliable process and that the company did not explain its months of delay. It also found the timing and omitted enforcement history inconsistent with good faith and denied reopening.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Reopening of the three final assessments was denied.
• Key point: Multiple misdirected filings do not establish excusable neglect when the operator also ignores delinquency notices and delays until collection enforcement begins.

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.

LOPKE
QUARRIES, INC.

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Docket
No. SE 2023-0254

A.C.
No. 38-00749-571990

Docket
No. SE 2023-0255

A.C.
No. 01-03411-570549

Docket
No. SE 2023-0256

A.C.
No. 38-00749-572191

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

ORDER

BY: THE COMMISSION

These
cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”).[1]
On September 21, 2023, the Commission received from Lopke Quarries, Inc., (“Lopke
Quarries”) a motion to reopen final orders 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).

In
response to the motion, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) has provided the following information regarding the status of these
final orders.

The proposed assessment in Docket No. SE
2023-0254 was delivered to the operator on March 6, 2023. The assessment
contained 11 citations with an aggregate proposed penalty of $7,550. The
operator timely submitted payment for one of the citations at issue. The
remaining penalties became final orders of the Commission on April 5, 2023. MSHA
sent the operator a delinquency notice on May 22, 2023.

The
proposed assessment in Docket No. SE 2023-0255 was delivered to the operator on
February 6, 2023. The assessment contained 18 citations with an aggregated
proposed penalty of $24,154. The operator timely paid the penalty for one of
the citations at issue. The remaining penalties became final orders of the
Commission on March 8, 2023. MSHA sent the operator a delinquency notice on
April 24, 2023.

The
proposed assessment in Docket No. 2023-0256 was delivered to the operator on
March 6, 2023. A $21,029 penalty was assessed for a single citation. The
operator did not submit timely payment and it became a final order of the
Commission on April 5, 2023. MSHA sent the operator a delinquency notice on May
22, 2023.

On
approximately July 18, 2023, MSHA delivered a “scofflaw” letter to Lopke
Quarries, which stated that the Secretary may take additional enforcement
actions if the operator fails to submit payment of its unpaid penalties. Lopke
Quarries did not pay. On August 29, 2023, MSHA issued Citation No. 9708285,
directing the operator to either submit payment or to enter into an installment
agreement by September 28, 2023. Instead, on September 21, 2023, the operator
filed the subject motion with the Commission.

On October 2, 2023, MSHA issued a section
104(b) withdrawal order to Lopke Quarries, alleging a failure to abate Citation
No. 9708285. On October 04, 2023, MSHA received a
payment from Lopke Quarries in the amount of $48,932.[2]

Lopke
Quarries General Superintendent Mike Lindhorst filed the motion with the
Commission pro se. The motion states that the operator attempted to timely
contest the proposed assessments, but mistakenly mailed the contest forms along
with the civil penalty payments to MSHA’s payment center. The operator further
alleges that it contacted MSHA after receiving a delinquency notice and was
informed of its mistake. Mr. Lindhorst states that he attempted to reopen the
penalties, but initially erroneously directed his motion to MSHA rather than
the Commission as is required. Finally, the operator asserts that it was
unfamiliar with the contest process, as it normally pays assessments.

The
Secretary opposes reopening the final orders, alleging that the operator failed
to provide a detailed accounting of its attempts to timely file and,
additionally, has failed to provide a reason for its delay in seeking to reopen.
She alleges that by waiting until the Secretary threatened to take enforcement
actions to collect, before filing a motion to reopen, the operator demonstrated
a lack of good faith.

Here,
the operator asserts that its failure to timely file was due to a general lack
of understanding of the contest process, two specific mistakes (mailing its
contests to the payment center and mailing its first request to reopen to
MSHA), and additional “smaller factors.” We do not find that this series of
issues constitutes excusable error or inadvertence and note that it may reflect
an inadequate or unreliable processing system, which would be grounds to deny
the motion to reopen. See, e.g., Pinnacle Mining Co. LLC, 30
FMSHRC 1066, 1067 (Dec. 2008).

Moreover, “[m]otions to
reopen received within 30 days of an operator’s receipt of its first
notice from MSHA that it has failed to timely file a notice of contest
will be presumptively considered as having been filed within a reasonable
amount of time.” Highland
Mining Co.,
31
FMSHRC 1313, 1316-17 (Nov. 2009) (emphasis added). Conversely, motions filed more
than 30 days after such notice should include an explanation as to why the
operator waited so long to file for reopening. The lack of such an explanation
is grounds
for the
Commission to deny the motion. Id.

Here, the operator received its first
notice from MSHA in April and May 2023, when it was sent delinquency notices,
and its second notice in July when it was sent a scofflaw letter. However, the
operator did not file for reopening until September 21, 2023. Some of this
delay was apparently due to the initial misfiling of the request to reopen with
MSHA. However, emails provided by the operator show that Lopke Quarries did not
even reach out to MSHA until August 8, 2023, approximately three months after being
notified that the assessments had become final. The operator has not explained
this delay.[3]

We conclude that Lopke Quarries has failed
to establish good cause for its failure to timely file to contest the proposed
assessments; its motion does not demonstrate exceptional circumstances and the
operator has failed to adequately explain its delay in seeking to reopen after
it became aware of its errors.

Finally, the operator’s motion omits
mention that it received Citation No. 9708285 on August 29, 2023, after failing
to pay the civil penalties owed, and then filed the motion with the Commission.
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. See, e.g., Stone Zone, 41 FMSHRC 272, 274 (June 2019) (citations
omitted).

Based upon these reasons, Lopke Quarries’
motion is DENIED.

/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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Mike
Lindhorst, General Superintendent

Lopke
Quarries, Inc.

3430
State Route 434

Apalachin,
NY 13732

[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 Commission
consolidates these proceedings pursuant to Commission Procedural Rule 12, 29
C.F.R. § 2700.12, for the limited purpose of addressing the motion to reopen.

[2] The Secretary
represents that although the operator submitted payment, she does not believe
that Lopke Quarries motion to reopen is moot; payment was submitted in response
to the issuance of the section 104(b) order to withdraw miners from the mine. Sec’y
Response at 5 n.2.

[3] Lopke Quarries
states generally that it believed MSHA handled scheduling and would reach out
when the matters were due to be heard. However, this does not explain why the
operator continued to wait after MSHA sent delinquency letters.