IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60049

NORANDA ALUMINA, L.L.C., 

 Petitioner,

v.

THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR; FEDERAL 

MINE SAFETY & HEALTH REVIEW COMMISSION, 

 Respondents.

On Petition for Review of an Order of the 

Federal Mine Safety & Health Review Commission

Before CLEMENT, PRADO, and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This is a petition for review of an order of the Federal Mine Safety & 

Health Review Commission (“FMSHRC” or “the Commission”) denying a 

motion to reopen. Because the Commission applied its precedents arbitrarily 

in denying this motion to reopen, we GRANT the petition for review and 

REMAND for further proceedings.

I. BACKGROUND

Noranda Alumina, LLC (“Noranda”) operates an alumina refinery near 

Gramercy, Louisiana. In March or April 2014, a contractor detected mercury 

in one part of the Gramercy facility. That same month the Mine Safety and 

United States Court of Appeals

Fifth Circuit

FILED

November 8, 2016

Lyle W. Cayce

Clerk

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Health Administration (“MSHA”) inspected the facility and issued two 

citations to Noranda for failing to test for mercury. See 30 C.F.R. §§ 47.21, 

56.5002. Noranda requested a “safety and health conference” with MSHA

pursuant to 30 C.F.R. § 100.6. This conference was held on June 12, 2014, but 

Noranda failed to persuade MSHA to withdraw its citations. 

In July 2014, MSHA assessed penalties in the amount of $38,573 for the

citations. Notice of this assessment arrived at Noranda’s Gramercy facility on 

July 18, 2014. On that same day, the facility’s Environmental Health and 

Safety Manager, Louis DeRose, unexpectedly quit. DeRose had been 

responsible for dealing with MSHA. In DeRose’s absence, the assessment came 

to the attention of Environmental Manager Bud Preston, who was generally 

unfamiliar with MSHA and the citations at issue. Preston brought the 

assessment to then-Plant Manager Dave Hamling. Believing it was a bill, 

Preston asked Hamling whether Noranda should pay it. Hamling apparently 

assumed that counsel had reviewed the citations and had advised paying the 

assessment. Hamling therefore approved the payment on July 23, 2014. In 

August 2014, Hamling also left the company. 

On September 23, 2014, Noranda’s upper management and counsel 

realized that the assessment had been paid. Noranda apparently had intended 

to contest the citations rather than pay the assessment. By this time, the 

thirty-day deadline to contest MSHA penalty assessments had passed. See 30 

U.S.C. § 815(a) (“[T]he operator has 30 days within which to notify the 

Secretary [of Labor] that he wishes to contest the citation or proposed 

assessment of penalty.”). The citation and penalty had therefore become “a 

final order of the Commission.” Id. 

Noranda filed a motion to reopen on October 31, 2014, seeking to 

adjudicate the citation and penalty on the merits. Noranda claimed that it had 

intended to contest the citations and that its prior payment was mistakenly 

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approved. The Secretary of Labor made two arguments in opposition to

Noranda’s motion to reopen. First, the Secretary argued that Noranda failed 

to “provide an explanation that constitutes adequate or good cause for its 

failure” to timely contest the assessment. In connection with this argument, 

the Secretary stated: “The Commission and the Courts have repeatedly held 

that the fact that a party had inadequate or unreliable internal procedures 

does not constitute an adequate excuse under Rule 60(b)(1).” Second, the 

Secretary argued, Noranda did “not identify facts that, if proven on reopening, 

would constitute a meritorious defense.” 

On December 18, 2015, the Commission denied Noranda’s motion.

Because failure to timely contest an assessment after the departure of an 

employee constituted “an inadequate or unreliable internal processing 

system,” the Commission held that Noranda “ha[d] not established grounds for 

reopening the assessment.” This petition for review followed.

II. JURISDICTION AND STANDARD OF REVIEW

A party aggrieved by an order of the Commission may seek review in 

either the Court of Appeals for the District of Columbia or the “court of appeals 

for the circuit in which the [safety] violation is alleged to have occurred.” 30 

U.S.C. § 816(a)(1); see also Pendley v. Fed. Mine Safety & Health Review 

Comm’n, 601 F.3d 417, 422 (6th Cir. 2010). That court then has “exclusive 

jurisdiction” over the case. 30 U.S.C. § 816(a)(1). Because Noranda’s alleged 

violations occurred in Louisiana, this Court has jurisdiction.

Abuse of discretion is the appropriate standard of review in this case. 

Courts review FMSHRC orders under the “Mine [Safety & Health] Act and 

general administrative law principles.” Pendley, 601 F.3d at 422. The

Administrative Procedure Act does not generally apply. 30 U.S.C. § 956; see 

also Pendley, 601 F.3d at 422. In both judicial and administrative contexts, 

courts review denials of motions to reopen for abuse of discretion. See Diaz v. 

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Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (reviewing denial of Rule 60(b) 

motion for abuse of discretion); Lone Mountain Processing, Inc. v. Sec’y of 

Labor, 709 F.3d 1161, 1163 (D.C. Cir. 2013) (reviewing FMSHRC denial of 

motion to reopen for abuse of discretion). 

Our review of motions to reopen in the immigration context is 

instructive. There we apply “a highly deferential abuse-of-discretion 

standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). We will affirm 

the decision of the Board of Immigration Appeals (“BIA”) “as long as it is not 

capricious, without foundation in the evidence, or otherwise so irrational that 

it is arbitrary rather than the result of any perceptible rational approach.” 

Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We have made 

clear, however, that “[t]he BIA may not apply its precedents arbitrarily.” 

Rodriguez-Manzano v. Holder, 666 F.3d 948, 954 (5th Cir. 2012). If an agency 

does “depart from its settled policies,” it must “offer[] a reasoned explanation”

for such departure. Wellington v. INS, 108 F.3d 631, 637 (5th Cir. 1997) (citing 

INS v. Yang, 519 U.S. 26, 32 (1996)). As the First Circuit has held, 

“administrative agencies must apply the same basic rules to all similarly 

situated supplicants. An agency cannot merely flit serendipitously from case 

to case, like a bee buzzing from flower to flower, making up the rules as it goes 

along.” Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996). 

III. DISCUSSION

The Commission denied Noranda’s motion to reopen because its failure 

to timely contest the penalty “result[ed] from an inadequate or unreliable 

internal processing system.” As explained below, the Commission has not 

applied its “internal processing system” rule consistently. Thus, we find that 

the Commission abused its discretion by arbitrarily denying Noranda’s motion 

to reopen.

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A. The Mine Safety & Health Act

We begin by discussing the relevant agency structures and procedures. 

The Federal Mine Safety & Health Act of 1977 (“Mine Act”), 30 U.S.C. § 801 et 

seq., distributes policymaking and adjudicatory functions to two separate

agencies. Under this framework, “MSHA plays the roles of police and 

prosecutor, and the [FMSHRC] plays the role of judge.” Lone Mountain, 709 

F.3d at 1162. MSHA, under the aegis of the Department of Labor, regulates 

mine safety standards, inspects mining operations, and issues citations and 

penalties for regulatory violations. 29 U.S.C. § 557a; 30 U.S.C. §§ 813–14.

FMSHRC administrative law judges (“ALJs”) are responsible for trial-level 

review of MSHA citations and penalties, see 29 C.F.R. § 2700.50–.69, while the 

Commission itself primarily conducts appellate review of ALJ orders, see 29 

C.F.R. § 2700.70–.79. The Commission has authority to prescribe its own rules 

of procedure. 30 U.S.C. § 823(d)(2). Except where otherwise specified in the 

Mine Act, agency regulations, or APA, the Commission has chosen to “be 

guided so far as practicable by the Federal Rules of Civil Procedure and the 

Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b).

MSHA may cite mine operators for violations of the Mine Act and 

applicable safety regulations. 30 U.S.C. § 814(a). By statute, a cited mine 

operator has thirty days to notify the Secretary that the operator “wishes to 

contest the citation.” 30 U.S.C. § 815(a). Once the citation is issued, MSHA 

proposes a penalty assessment. 30 C.F.R. § 100.3. The operator then has thirty 

days to challenge this proposed penalty. 30 C.F.R. § 100.7(b)(2). An operator 

may challenge a penalty assessment without challenging the underlying

citation. 29 C.F.R. § 2700.21(b). In fact, MSHA and the Commission discourage

challenges to citations as “a needless use of . . . resources” unless an early 

hearing is warranted. Marfork Coal Co., 28 FMSHRC 842, 843 (2006) (quoting 

Secretary of Labor’s brief).

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Failure to challenge the penalty assessment within thirty days of receipt

renders the citation and penalty “a final order of the Commission and not 

subject to review by any court or agency.” 30 U.S.C. § 815(a). Drawing on 

Federal Rule of Procedure 60(b), however, the Commission permits mine 

operators to move to reopen final orders. Jim Walter Res., Inc., 15 FMSHRC 

782, 789 (1993) (“[W]e hold that a final order of the Commission may be 

reopened by the Commission in appropriate circumstances pursuant to Rule 

60(b).”). As the D.C. Circuit explained in Lone Mountain:

Over the years, mine operators have failed to respond to MSHA 

citations and proposed penalty assessments within the thirty-day 

windows prescribed by 30 U.S.C. § 815(a) and subsequently have 

sought the Commission’s lenience by filing motions to reopen. In 

turn, the Commission has developed a body of precedent regarding 

how to treat such motions based on the facts in each case.

709 F.3d at 1163. Recognizing that “default is a harsh remedy,” the 

Commission reopens final orders where “the defaulting party can make a 

showing of adequate or good cause.” Martin Marietta Aggregates, 22 FMSHRC 

1178, 1179 (2000). “In accordance with Rule 60(b)(1),” the Commission may 

reopen a case “on the basis of inadvertence, mistake, or excusable neglect” by 

the defaulting party. Id. The case may proceed on the merits before an ALJ 

upon reopening. See Lee Mech. Contractors, Inc., 38 FMSHRC 44, 45 (2016).

B. The Commission’s Abuse of Discretion

Noranda primarily argues that the Commission abused its discretion by 

ignoring its own precedent. This precedent, according to Noranda, requires 

reopening a final order when an operator demonstrates its intent to contest the 

order. In addition, Noranda argues that it did have an effective internal 

processing system, contrary to the Commission’s finding. Noranda also points 

to cases where the Commission granted a motion to reopen despite an 

inadequate internal processing system. In response, the Secretary of Labor 

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distinguishes factually similar cases cited by Noranda and offers additional 

justifications for the Commission’s decision. Both parties also discuss whether 

Rule 60(b) requires reopening. 

As an initial matter, this Court may only review reasoning articulated 

by the agency at the time of its decision. See, e.g., Burlington Truck Lines, Inc. 

v. United States, 371 U.S. 156, 168 (1962) (“[C]ourts may not accept appellate 

counsel’s post hoc rationalizations for agency action . . . .”). There may be 

factors that support a denial of Noranda’s motion to reopen, such as the 

Secretary’s opposition to the motion, and Noranda’s delay in filing its motion.

But these post hoc rationalizations cannot retroactively justify the agency’s 

decision. Furthermore, we will not review the Commission’s decision against 

our own Rule 60(b) jurisprudence. Because the Commission is “guided” by the 

Federal Rules of Civil Procedure only “so far as practicable,” 29 C.F.R. § 

2700.1(b), we will defer to the agency’s own jurisprudence on procedural 

matters.1

In Lone Mountain, the D.C. Circuit addressed an FMSHRC denial of a 

motion to reopen on one of the grounds advocated by Noranda—that the 

Commission abused its discretion by ignoring its own precedent without 

explanation. 709 F.3d at 1163. There too, the Commission denied an operator’s 

motion to reopen in part because the operator’s “failure to contest a proposed 

assessment result[ed] from an inadequate or unreliable internal processing 

system.” Lone Mountain Processing, Inc., 33 FMSHRC 2373, 2375 (2011). Lone 

Mountain had timely contested the underlying citation, but not the penalty 

assessment. Lone Mountain, 709 F.3d at 1163. Yet in previous cases, Lone 

 

1 Notably, the Commission has not promulgated any regulations concerning motions 

to reopen, although it has provided nonbinding guidance on its website. See Fed. Mine Safety 

& Health Review Comm’n, Requests to Reopen, http://www.fmshrc.gov/content/requestsreopen.

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Mountain argued, the Commission “repeatedly stated that the timely 

challenge to a citation gives a ‘clear’ indication” of intent to contest the penalty. 

Id. (quoting Oldcastle Stone Prods., 31 FMSHRC 1103, 1104 (2009)). In 

remanding for reconsideration, the court reasoned that the Commission failed 

either to distinguish Lone Mountain’s case from prior decisions or to explain 

why departure from precedent was necessary. Id. at 1164. Had the Commission 

considered its prior orders, “it would have explained why they do not apply in 

Lone Mountain’s case. But despite their obvious relevance, the Commission 

failed even to mention or discuss, let alone distinguish, those orders.” Id. Thus, 

the court found the Commission’s order arbitrary and capricious. Id.

Like Lone Mountain, Noranda pointed the Commission to factually 

similar cases in which the Commission reopened a final order. In Kaiser 

Cement Corp., 23 FMSHRC 374 (2001), for example, the Commission granted 

a motion to reopen even though the operator’s failure to timely contest the 

penalty was due to “internal mismanagement.” Id. at 375. The operator in 

Kaiser Cement experienced a “miscommunication during a transition period” 

when the employee responsible for handling MSHA citations left the company. 

Id. An employee unfamiliar with MSHA’s contest procedures inadvertently 

paid the penalty even though the operator had already filed a notice of contest. 

Id. Likewise, in Doe Run Co., 21 FMSHRC 1183 (1999), the operator 

mistakenly paid the penalty “because the employee normally responsible for 

the initial review of any proposed assessment, the safety administrator, was 

out of the country.” Id. at 1184. In both cases, the Commission found that the 

operator had intended to contest the penalty, and that its payment was 

inadvertent or mistaken. Id.; Kaiser Cement, 23 FMSHRC at 375. Thus, the 

Commission granted the motion to reopen in each case.

The Commission failed to explain why it did not follow Kaiser Cement or 

Doe Run. Of course, the Commission is not bound by its precedent. See 

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Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 

(1973). Nor must it distinguish every prior decision that features somewhat 

similar facts. Lone Mountain, 709 F.3d at 1164. In particular, an agency 

decision may “stand without elaborate explanation where distinctions between 

the case under review and the asserted precedent are so plain that no 

inconsistency appears.” Id. (quoting Bush–Quayle ’92 Primary Comm., Inc. v. 

Fed. Election Comm’n, 104 F.3d 448, 454 (D.C. Cir. 1997)).

But an agency “may not apply its precedents arbitrarily.” RodriguezManzano, 666 F.3d at 954. In this case, the FMSHRC articulated one principle: 

“where a failure to contest a proposed assessment results from an inadequate 

or unreliable internal processing system, the operator has not established 

grounds for reopening the assessment.” Although stated like a rule, it is not so 

applied. The Commission routinely grants motions to reopen where the 

operator’s internal processing system is at fault. Kaiser Cement and Doe Run 

are older examples, perhaps predating the Commission’s internal processing 

system rule.2 But more recently, in Warrior Coal, LLC, 36 FMSHRC 870 

(2014), the operator blamed its delay in contesting a penalty on “an unknown 

error in its internal mail delivery.” Id. at 871. The Commission granted the 

motion without mentioning the internal processing system rule. Id. In another 

case involving Pinnacle Mining, the operator failed to timely contest a penalty 

“because its safety manager, who [was] responsible for handling proposed 

assessments, was on Christmas vacation when the proposed assessment was 

delivered.” Pinnacle Mining Co., 38 FMSHRC 422, 422–23 (2016). Again, the 

Commission granted the motion to reopen without reference to the internal 

processing system rule. Id. at 423. In another case decided shortly after 

 

2 The oldest case cited by the Commission in support of this rule is Pinnacle Mining 

Co., 30 FMSHRC 1061 (2008), decided seven years after Kaiser Cement and nine years after 

Doe Run.

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Noranda (though not cited by the petitioner), the Commission reopened a 

proposed penalty even though the operator’s failure to timely challenge the 

assessment was due to an “internal processing error.” C.R. Briggs, 37 

FMSHRC 2754, 2755 (2015). The Commission did not explain why it reopened 

the case despite this error.

Perhaps these cases are distinguishable from Noranda’s. The Secretary 

offers two distinctions, which we address in turn. First, Noranda did not 

formally contest the citations, as Kaiser Cement and Doe Run did. As the D.C. 

Circuit noted in Lone Mountain, contesting a citation indicates an operator’s 

intent to contest the penalty. 709 F.3d at 1163. But since deciding Kaiser 

Cement and Doe Run, the Commission has come to discourage citation contests. 

See Marfork Coal, 28 FMSHRC at 843. Moreover, Noranda did request a 

“safety and health conference” to try to persuade MSHA to withdraw the 

citations. This request could have indicated Noranda’s intent to contest the 

penalty. Second, the Secretary opposed Noranda’s motion whereas it did not 

oppose Warrior Coal’s or C.R. Briggs’s. Warrior Coal, 36 FMSHRC at 871; C.R. 

Briggs, 37 FMSHRC at 2755. But the Secretary did oppose Pinnacle Mining’s 

motion in 2016. Pinnacle Mining, 38 FMSHRC at 423. Thus, Noranda’s case is 

not obviously distinguishable from these prior precedents.

Even if these cases are obviously distinguishable based on some 

unspoken factor, the Commission failed to “apply the same basic rule[] to all

similarly situated supplicants.” Henry, 74 F.3d at 6. In this case, the 

Commission applied a rule that, on its face, admits of no exception. Yet Kaiser 

Cement, Doe Run, Warrior Coal, and Pinnacle Mining are all exceptions.

Indeed, the Secretary does not even argue that the operator’s default in those 

cases resulted from something other than an inadequate internal processing 

system. But the Commission did not cite its internal processing system rule in 

those cases, let alone explain why it did not apply. Based on our review of the 

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Commission’s orders, an inadequate internal processing system is not why the 

Commission denies a motion to reopen. Instead, it is merely a reason the 

Commission cites when it chooses to deny a motion to reopen. When the 

Commission chooses to grant a motion to reopen, it ignores this rule. 

Other than relying on an inconsistently applied rule, the Commission did

not describe the factors that motivated its disposition in this case. Its decisionmaking process was therefore “arbitrary rather than the result of any 

perceptible rational approach.” Gomez-Palacios, 560 F.3d at 358.

On remand, the Commission may very well deny Noranda’s motion to 

reopen. “[B]ut it must do so with more clarity than it showed in the first 

instance.” Lone Mountain, 709 F.3d at 1164. In particular, the Commission 

should describe the factors it uses in deciding motions to reopen. And if the 

Commission again departs from factually similar precedent, it should justify 

this departure.

IV. CONCLUSION

For the foregoing reasons, we GRANT the petition for review and 

REMAND for further proceedings.

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