Secretary of Labor v. Holcim (US) Incorporated

Plain-English summary

Holcim's plant and safety managers did not receive an assessment covering 17 citations after the administrative assistant responsible for mail was terminated. A temporary employee handled mail along with other duties, and the safety manager discovered the assessment while checking MSHA's database. Holcim then assigned and trained a permanent replacement, promptly sought relief, and faced no opposition from the Secretary. The majority found good cause, reopened the assessment, and remanded it. 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: The penalty assessment was reopened and remanded, over one Commissioner's dissent.
• Key point: A documented temporary staffing gap, corrective training, and prompt filing supported reopening after mishandled mail.

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.

HOLCIM
(US) INCORPORATED

Docket
No. SE 2024-0173

A.C.
No. 01-02343-594806

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

ORDER

BY:  Jordan,
Chair, and Baker, 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 June 20, 2024, the Commission received from
Holcim (US) Incorporated (“Holcim”) 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 Holcim on March 6, 2024, and became a final order of the
Commission on April 5, 2024. On May 21, 2024, MSHA sent Holcim a delinquency
letter.

Holcim seeks to reopen the assessment so
that it may contest the penalties associated with 17 citations. The operator explains
that its Plant Manager and Safety Manager never received Assessment No.
000594806 from the administrative assistant tasked with retrieving and
distributing mail. Holcim states that it received a different penalty
assessment on approximately April 16, 2024, that contained some proposed
penalties from the inspection, and that it expected subsequent assessments to
follow. It states that on June 6, 2024, the Safety Manager discovered that Assessment
No. 000594806 had been issued when checking MSHA’s Mine Data Retrieval System
following a conference with MSHA. Holcim’s counsel contacted MSHA’s Civil
Penalty Compliance Office, which informed counsel that Assessment No. 000594806
had been delivered on March 6 and provided counsel with a copy of the subsequent
delinquency letter. The operator states that there is no indication at the mine
that the delinquency letter was received.

Holcim further explains that during the
relevant time, the administrative assistant had been terminated from her
position and another employee temporarily had assumed the role of mail
distribution along with her other regular duties. It states that there is now a
new person permanently assigned to the administrative assistant position, and that
the person has been trained in proper and timely mail pickup and handling
procedures in order to prevent a recurrence of what appears to have been a
mistake in handling the mail. The Secretary does not oppose Holcim’s motion to
reopen. [1]

Upon consideration of the filings,
including the Secretary’s non-opposition, we find that the operator
demonstrated a good cause reason for missing the filing deadline. See, e.g.,
River View Coal, LLC, 35 FMSHRC 5 (Jan. 2013) (reopening when temporary
staff were unaware of the timely nature of the assessment). The operator’s
prompt filing of a motion to reopen after missing the deadline demonstrates a
good faith effort to comply with the Commission’s requirements. See, e.g.,
Heidelberg Materials US Cement LLC , 45 FMSHRC 1004, 1005 (Dec. 2023) (quick
action after recognizing an error militates in favor of reopening).

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:

Margaret
S. Lopez, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

1909
K Street, N.W., Suite 1000

Washington,
D.C. 20006

[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] The Secretary
filed an unopposed motion for an extension of time to file his response. We
hereby grant the motion.