Secretary of Labor v. TM Crushing, LLC

Plain-English summary

TM Crushing said a personnel change prevented its proposed penalty assessment from reaching outside counsel before the contest deadline. The operator did not identify who changed roles, when the transition occurred, how responsibilities were covered, when the error was discovered, or what corrective procedures it adopted. The Secretary opposed reopening. The Commission held that general assertions did not establish good cause and denied the motion with prejudice. Commissioner Marvit concurred in denial while repeating his view that the Commission lacks authority to reopen section 105(a) final orders.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen was denied with prejudice.
• Key point: A staffing-transition explanation must include dates, responsible people, discovery timing, and corrective steps.

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.

TM
CRUSHING, LLC

Docket
No. WEST 2024-0174

A.C.
No. 04-02544-5922007

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 March
22, 2024, the Commission received from TM Crushing, LLC (“TM Crushing”) 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), 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).

The Department of Labor’s Mine Safety and
Health Administration (“MSHA”) indicates that the proposed assessment was
delivered to the operator on January 18, 2024. The assessment became a final
order of the Commission on February 19, 2024.

TM Crushing states that, due to
inadvertence and mistake, the proposed assessment form contesting the citations
and penalties was not sent to MSHA in a timely manner. Specifically, the
operator recently had a change in personnel who normally handled the processing
of assessment forms. In the transition period, the assessment form did not get
forwarded to outside counsel in a timely manner. Once TM Crushing personnel
became aware of the assessment form, it was immediately forwarded to the
undersigned counsel for contest. The operator further states that its intent to
contest the penalties is clear as it did not submit payment to MSHA for the
penalties and that no delay nor prejudice will result to the Secretary by
reopening this proceeding.

The Secretary
opposes the motion stating that TM Crushing has not established good cause for
its failure to submit a timely contest and that the motion should be denied
with prejudice. Specifically, the Secretary argues that the operator does not
explain what the change in personnel was, why and when it occurred, how the
responsibilities were handled during its transition, and how this “change”
impacted TM Crushing’s obligation to timely submit the contest. She notes that
the operator also provided no evidence to support its assertions. The Secretary
contends that TM Crushing’s lack of available resources needed to ensure timely
processing and its failure to train its employees on proper penalty processing
during staffing changes amounts to an inadequate or unreliable internal
processing system. She asserts that TM Crushing also fails to identify any
corrective procedures it will implement to address any future processing issues
when there is a change in personnel. The Secretary further argues that the
operator failed to establish that it filed its motion within a reasonable time,
because it did not specify when it became aware of the assessment, and it filed
its motion more than a month after it became a final order. The Secretary maintains
that TM Crushing has not identified facts that, if proven on reopening, would
constitute a meritorious defense.

When filing a motion to reopen before the
Commission the operator bears the burden of showing exceptional circumstances. Lone
Mountain Processing, Inc ., 35 FMSHRC 3342, 3345 (Nov. 2013). Relief under
Rule 60(b) requires more than “general assertions or conclusory statements as
to why an operator failed to timely contest.” Sw. Rock Prods ., 45 FMSHRC
747, 748 (Aug. 2023) (citing Atlanta Sand & Supply Co ., 30 FMSHRC
605, 608 (July 2008); Buzzi Unicem USA , 45 FMSHRC 1015, 1017 (Dec. 2023).

Having reviewed TM Crushing’s request and
the Secretary’s response, we conclude that the operator has failed to provide
sufficient information to determine whether good cause may exist to reopen the
final order. The operator’s motion is deficient as it fails to provide a
factual and detailed accounting of the change in personnel and how it resulted
in the operator’s failure to timely contest the proposed penalty assessment. “At
a minimum, the applicant for such relief must provide all known details,
including relevant dates and persons involved, and a clear explanation that
accounts, to the best of the operator’s knowledge, for the failure to submit a
timely response and for any delays in seeking relief once the operator became aware
of the delinquency or failure. . . .” Lone Mountain , 35 FMSHRC at 3345
(citing Higgins Stone Co ., 32 FMSHRC 33, 34 (Jan. 2010)); Panther
Creek Mining, LLC , 46 FMSHRC 9, 10 (Jan. 2024). In the instant matter, the
operator has failed to establish good cause for reopening the above-referenced
case. Accordingly, TM Crushing’s motion to reopen is denied with prejudice.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, concurring,

I write to agree 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
(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 denies reopening in its opinion
because the operator has not alleged good cause or provided a factual
accounting for its failure to timely contest the penalties. Though I believe
the Commission lacks the authority to consider motions to reopen, I concur with
the Majority in denying reopening in this matter.

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Karen
L. Johnston, Esq.

Jackson
Kelly PLLC,

1099
18th Street, Suite 2150

Denver,
CO 80202

[email protected]

Thomas
A. Paige, Esq.

Deputy
Associate Solicitor

US
Department of Labor

Office
of the Solicitor

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]