**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

 

 

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

**ORDER**

 

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

            Thiscase arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On April 25, 2023, the Commission receivedfrom Panther Creek Mining, LLC (“Panther Creek”) a motion to reopen a finalorder of the Commission pursuant to section 105(a) of the Act, 30 U.S.C. §815(a).

 

            Undersection 105(a) of the Mine Act, an operator who wishes to contest a proposedpenalty must notify the Secretary of Labor no later than 30 days afterreceiving the proposed penalty assessment. If the operator fails to notify theSecretary, the proposed penalty assessment is deemed a final order of theCommission. 30 U.S.C. § 815(a).

 

            Wehave held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessmentsthat have become final Commission orders under section 105(a). *Jim WalterRes., Inc.,* 15 FMSHRC 782, 786-89 (May 1993) (“*JWR*”). In evaluatingrequests to reopen final orders, the Commission has found guidance in Rule60(b) of the Federal Rules of Civil Procedure, under which the Commission mayrelieve 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 aspracticable by the Federal Rules of Civil Procedure”); *JWR*, 15 FMSHRC at787. We have also observed that default is a harsh remedy and that, if thedefaulting party can make a showing of goodcause for a failure to timely respond, the case may be reopened andappropriate proceedings on the merits permitted. *See Coal Prep. Servs.,Inc.,* 17 FMSHRC 1529, 1530 (Sept. 1995).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered to the operator on January17, 2023, and became a final order of the Commission on February 16, 2023,after Panther Creek did not contest the penalties. In the assessment, MSHA had proposeda total civil penalty of $75,601 for the 49 citations at issue.

 

On April 3, 2023, after failing to receivepayment, the Secretary sent the operator a delinquency notice. On approximatelyApril 17, 2023, MSHA delivered a scofflaw letter to the mine, which stated thatif the operator did not pay the delinquent penalties within 30 days MSHA maytake further action. The operator filed the subject motion to reopen on April25, 2023. On May 17, 2023, MSHA issued a citation to Panther Creek alleging afailure to pay. 

 

In the subject motion to reopen, PantherCreek maintains, without further explanation, that an internal “administrativeerror” delayed routing of the assessment to its Corporate Safety Director andthus its ability to timely file. The Secretary opposes reopening. She assertsthat the operator has failed to establish that its failure to timely file wasthe result of an atypical mistake and not the result of an inadequateprocessing system. Furthermore, the operator has failed to establish that ithas been acting in good faith.  

 

When filing a motion to reopen before theCommission the operator bears the burden of showing exceptional circumstances. *LoneMountain Processing, Inc*., 35 FMSHRC 3342, 3345 (Nov. 2013). Relief underRule 60(b) requires more than “general assertions or conclusory statements asto why an operator failed to timely contest.” *Sw. Rock Prods.*, 45 FMSHRC__ (August 30, 2023) (*citing Atlanta Sand & Supply Co*., 30 FMSHRC605, 608 (July 2008). 

 

Although the Commission may considermotions to reopen filed within 30 days of the operator’s receipt of its firstnotice of delinquency to be filed within a reasonable amount of time; themotion must also “set forth an adequate explanation for its reasons for itsdelinquency.” *See Highland Mining Company*, 31 FMSHRC 1313, 1316-17 (Nov.2009). “At a minimum, the applicant for such relief must provide all knowndetails, including relevant dates and persons involved, and a clear explanationthat accounts, to the best of the operator's knowledge, for the failure tosubmit a timely response and for any delays in seeking relief once the operatorbecame aware of the delinquency or failure. . . .” *Lone Mountain,*35FMSHRC at 3345 (*citing Higgins Stone Co*., 32 FMSHRC 33, 34 (Jan. 2010)).

 

Panther Creek’s motion lacks these requireddetails. Its motion does not include relevant dates or a description of theprocessing error.[1]Accordingly, it has failed to demonstrate that its “administrative error” wasexcusable and not the foreseeable result of its own unreliable internalprocessing system. It is well established that an inadequate or unreliableinternal processing system does not constitute inadvertence, mistake orexcusable neglect so as to justify the reopening of an assessment which hasbecome final under section 105(c) of the Mine Act. *Pinnacle Mining Co.*,30 FMSHRC 1061, 1062 (Dec. 2008); *Pinnacle Mining Co*., 30 FMSHRC 1066,1067 (Dec. 2008); *Highland Mining Co*., 31 FMSHRC 1313, 1315 (Nov. 2009):*Double Bonus Coal Co*., 32 FMSHRC 1155, 1156 (Sept. 2010); *Elk RunCoal Co*., 32 FMSHRC 1587, 1588 (Dec. 2010).[2]

 

Furthermore, Panther Creek has notdemonstrated good faith efforts to comply with the Commission’s filing deadlines.The operator received 49 citations over 18 days and thus should have been awarethat it would be receiving a sizable proposed penalty assessment. Nevertheless,it does not cite to any efforts it took to either contest or reopen thepenalties until after it received both a delinquency letter and a scofflawletter. It is well recognized that a movant’s good faith or lack thereof is animportant factor in determining whether good cause exists to reopen a finalorder. *See, e.g., Stone Zone*, 41 FMSHRC 272, 274 (June 2019) (citationsomitted).   

 

For these reasons, Panther Creek’s motionis DENIED with prejudice.[3]

 

 

 

 

/s/ Mary Lu Jordan

MaryLu Jordan, Chair

 

 

 

 

/s/Marco M. Rajkovich, Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

CommissionerAlthen dissenting, 

 

 

I respectfullydissent.

 

The pleadingsdemonstrate that MSHA provided a notice of a delinquency to Panther Creekthrough a letter mailed on April 3, 2023. In turn, Panther Creek filed itsmotion to reopen on April 25, 2023—a short period after receiving the noticefrom MSHA. 

 

            Binding Commission precedent holds, “Motions to reopenreceived within 30 days of an operator’s receipt of its first notice from MSHAthat it has failed to timely file a notice of contest will be presumptivelyconsidered as having been filed within a reasonable amount of time.” *HighlandMining Co*., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Indeed, the Commissionreaffirmed, or at least restated, this principle a few days ago. *HeidelbergMaterials, US Cement, LLC*, 45 FMSHRC ___ (Dec. 6, 2023).

 

Because Panther Creek’s motionfits within this timeline, the majority cannot find unreasonableness in thedelay in filing. Ignoring the reasonableness of the operator’s timing of itsmotion, the majority complains that the employee’s affidavit swearing to anadministrative error was insufficient to warrant reopening or even anopportunity for further explanation.

 

Panther Creek’s contest system failed inthis instance, but there is no evidence of a systematic failure. Instead,Panther Creek described a straightforward and simple system for contestingpenalties. According to Panther Creek’s affidavit, the system involves anadministrative employee scanning proposed assessments when they are receivedand then directing them to the corporate safety director. The corporate safetydirector then reviews the citations and files timely notices on those PantherCreek wishes to contest. This appears to be a sensible two-step and anordinarily reliable system for dealing with citations. If every singular failureto file on a timely basis is taken as a *per se*demonstration of anunreliable processing system, operators may look forward to few, if any,approvals of reopening.

 

The occurrence of a mistake isself-evident. The administrative staff tasked with scanning and forwarding theproposed assessment failed to follow normal procedure in this instance. PantherCreek filed a proper affidavit attesting to the error. Nonetheless, themajority forecloses a contest of more than $75,000 in assessed penalties becausethey find Panther Creek did not explain adequately the exact minutiae that leadto the administrative error. The Commission has not required a detailedexplanation of an “administrative error” to reopen a case. *U.S. Silver –Idaho, Inc.*, 33 FMSHRC 1044, 1045 (May 2011).

 

Having avowed they recognizethat default is a harsh remedy, the majority should have granted the motion or,minimally, should have provided Panther Creek an opportunity to provide anydesired information. Such inquiries have been made in the past and areconsistent with recognition of harsh result rather than the back of the handrejection in this case. *See, e.g., Callender Constr. Co*., 44 FMSHRC 536(Aug. 3, 2022), *Lafarge Aggregates Southeast, Inc.,*31 

 

FMSHRC 555 (May 2009) (granting the motion to reopen after theCommission initially denied without prejudice to allow the operator to refileand explain the “administrative error”).

 

 

 

 

/s/William I. Althen

WilliamI. Althen, Commissioner 

 

 

 

Distribution:

 

JonathanR. Ellis, Esq. 

JustinK. Chandler, Esq. 

Steptoe& Johnson PLLC

707Virginia Street, East, Seventeenth Floor

P.O.Box 1588

Charleston,WV 25326-1588

jonathan.ellis@steptoe-johnson.com

justin.chandler@steptoe-johnson.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov

----

[1]*Cf*. *HeidelbergMaterials, US Cement, LLC*, 45 FMSHRC ___ (Dec. 6, 2023) (finding that theoperator established that its failure to timely file to contest three citationswas the result of a good cause). In *Heidelberg Materials*, the operator’smotion described the error with particularity, *i.e*., an employeeneglected to transmit a single page of the contest form when timely filing tocontest penalties listed on the proposed assessment.

 

[2]This is not thefirst instance where Panther Creek sought reopening of a final order of theCommission after an alleged error prevented timely filing of the contest form. *SeePanther Creek Mining, LLC*, 40 FMSHRC 1158 (Aug. 2018) (reopening a finalorder after the assessment was not timely contested because the assessment was “mishandled”at the mine). Notably, the operator thereafter changed its address of recordfrom a P.O. Box to the corporate office in an attempt to prevent furthermishandlings of penalty assessments. *Id*. at 1159. Clearly, theoperator’s efforts were ineffective. 

 

[3] In its reply tothe Secretary’s response, the operator contends that the Secretary failed todemonstrate prejudice or that the default was warranted. However, we have longheld that it is the operator, not the Secretary, who has the burden of showing that it is entitled to suchextraordinary relief. *See, e.g.,**Noranda**Alumina*, 39FMSHRC 441, 443 (Mar. 2017).