Secretary of Labor v. Tehachapi Cement, LLC

Plain-English summary

A recently assigned safety manager believed MSHA's penalty office would forward Tehachapi's contest for 15 penalties to the correct division. While checking another mine, he realized that he had not followed the proper contest procedure. He sent the assessment to counsel the next day, and counsel filed for reopening one day later, only two days after the contest deadline. Tehachapi also changed its process so counsel would submit future assessment contests. The Commission reopened and remanded the matter, with one Commissioner dissenting on reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The assessment was reopened and remanded for further proceedings.
• Key point: A novice manager's contest-routing mistake can be excused when discovered almost immediately and followed by a concrete procedural correction.

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.
TEHACHAPI CEMENT, LLC |
|
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Docket No. WEST 2025-0145 A.C. No. 04-00196-611511
|

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

ORDER

BY: Rajkovich, Chair; Jordan, and Baker, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act”). On January 17, 2025, the Commission received from Tehachapi Cement, LLC (“Tehachapi”) a motion seeking to reopen a penalty assessment, which became a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the motion.

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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on December 16, 2024, and became a final order of the Commission on January 15, 2025.

Prior to contest of these penalties, an administrative assistant submitted penalty contests on behalf of Tehachapi. In October 2024, Tehachapi’s Health and Safety Manager took on the responsibility of contesting penalties. On January 13, 2025, the Safety Manager was processing the penalty contest form and payment for the uncontested penalties for submission to MSHA’s St. Louis office. The Manager believed that the MSHA penalty office would forward the information for contest of 15 penalties to the correct division. This was his second time submitting a notice of contest. During the same week, the Manager checked MSHA’s Data Retrieval System for another mine under his responsibility and realized that prior citations at the other site had not been properly contested and that he had not been following the proper steps to timely contest. On January 16, 2025, he forwarded the assessment form to Tehachapi’s counsel who filed this motion to reopen the following day.

Tehachapi argues that its confusion about the contest process was due to inadvertence or mistake that constitutes good cause to reopen the penalty proceeding. The operator further contends that its intent to contest the penalties is clear as it did not submit payment to MSHA for the penalties it wished to contest. Tehachapi’s motion to reopen was filed within a reasonable time as it was filed one day after it realized it failed to timely contest the penalties and only two days after the deadline to file the penalty contest. Going forward, Tehachapi will forward all assessment forms to counsel when contesting penalties for counsel to submit the assessment forms to prevent untimely contests in the future.

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/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/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, 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. 46
FMSHRC 965, 968 (Dec. 2024) (Marvit, M., dissenting). The Commission’s repeated
invocation of Federal Rule of Civil Procedure 60(b) cannot overcome the
statutory language. However, in Belt Tech, Inc., 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) (Marvit, M., concurring) (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

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]

Acting Chief Administrative Law Judge Micheal G. Young

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]