Secretary of Labor v. Greenbrier Minerals, LLC

Plain-English summary

Greenbrier Minerals' safety specialist miscalculated the assessment deadline and filed the contest one day late. The company sought to contest five citations and moved to reopen within ten days after the assessment became final. It made payments to avoid delinquency while expressly maintaining its right to contest those citations. The Secretary did not oppose relief. The Commission found good cause and good faith, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Five citations were reopened and remanded.
• Key point: A one-day deadline miscalculation and immediate corrective filing supported reopening.

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.

GREENBRIER
MINERALS, LLC

:

:

:

:

:

:

:

:

Docket
No. WEVA 2023-0191

A.C.
No. 46-09319-569162

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 February 16, 2023, the Commission received
from Greenbrier Minerals, LLC (“Greenbrier”) 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 January 7, 2023, and became a final order of the Commission on
February 6, 2023. The following day, Greenbrier filed its contest of the
assessment. A few days later, Greenbrier received a letter from MSHA informing
Greenbrier that the contest for the assessment had been untimely filed. On
February 16, 2023, MSHA received partial payment of the assessment.

Greenbrier seeks to reopen the assessment
so that it may contest five citations—Citation Nos. 9590068, 9590072, 9590074,
9590087, and 9590088. [1] Greenbrier
maintains that its safety specialist miscalculated the deadline to submit the
contest of the assessment as February 7, 2023, resulting in the contest being
filed one day after the deadline to contest the assessment. The Secretary of
Labor does not oppose the request to reopen.

We note that the motion to reopen was
timely filed. The Commission has previously held
that “[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). Here, the motion to reopen was filed on February 16, 2023,
within 30 days of the final order of February 6, 2023. Therefore, the motion to
reopen was filed within a reasonable amount of time.

        Having

reviewed Greenbrier’s request and the
Secretary’s response, we find that Greenbrier has demonstrated good
cause for its failure to timely respond and acted in good faith by timely
filing its request to reopen. 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:

Lorna
M. Waddell

F.
Thomas Rubenstein

Dinsmore
& Shohl LLP

215
Don Knotts Blvd., Suite 310

Morgantown,
WV 26501

[email protected]

Tom
Canterbury

Manager
of Safety

PO
Box 446

Man,
WV 25635

[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 operator
states that it is in the process of paying the full amount of the proposed
assessment but maintains that any payment of these citations is made merely to
avoid any potential delinquencies and does not waive its right to contest these
five citations. Motion to Reopen, at 1 n.1. Commissioner Baker has previously
stated that it is his position that the accidental payment of a civil penalty
does not constitute excusable neglect. See e.g. Omya, Inc. , 45 FMSHRC
131 (Mar. 2023). However, in light of the operator’s explanation for its
payment of the civil penalty, Commissioner Baker would determine that in the
instant case payment was not the result of an inadequate or unreliable internal
processing system.