Sec'y of Labor v. Westfall Aggregate & Materials, Inc.
| Decision Date | 07 April 2023 |
| Docket Number | 22-1088 |
| Parties | Secretary of Labor, Mine Safety and Health Administration, Petitioner v. Westfall Aggregate & Materials, Inc. and Federal Mine Safety and Health Review Commission, Respondents |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted January 12, 2023
On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission
Emily Toler Scott, Counsel for Appellate Litigation, U.S Department of Labor, and Jennifer A. Ledig, Attorney, were on the briefs for petitioner.
Cary W. Purcell was on the brief for respondents.
Before: PILLARD and PAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
The Mine Safety and Health Administration ("MSHA") is an agency within the Department of Labor whose mission is to administer the provisions of the Federal Mine Safety and Health Act ("Mine Act"), 30 U.S.C. § 801 et seq. The Mine Act authorizes the Secretary of Labor ("Secretary"), acting through MSHA, to promulgate mandatory safety and health standards, inspect mines, issue citations and orders for violations of the Act or mandatory standards, and propose penalties for those violations. The Mine Act established the Federal Mine Safety and Health Review Commission ("Commission"), an independent agency with the authority to adjudicate disputes over citations, orders, and penalties issued by MSHA that mine operators contest. This case involves a petition filed by the Secretary to review a decision issued by the Commission denying as moot a request filed by a mine operator, Westfall Aggregate &Materials, Inc. ("Westfall"), to reopen a penalty assessment issued against the operator more than a decade ago.
In February 2011, an inspector for MSHA discovered a crane at Westfall operating on site with no working service brakes. The inspector issued Westfall a withdrawal order commanding the crane's immediate removal, as well as a citation for the incident. Westfall immediately complied with the withdrawal order. A citation was issued and a penalty was assessed against Westfall. The penalty was deemed a final order after thirty days when Westfall failed to contest it. See 30 U.S.C. § 815(a). On October 6, 2011, MSHA mailed a delinquency notice to Westfall, notifying the operator that interest on the penalty would accrue. Westfall did not respond to this notice.
In July 2019, eight years after the penalty was deemed a final order, and only after MSHA had begun enforcement proceedings against the operator for failing to pay its delinquent penalties, Westfall filed a motion to reopen the matter. It claimed that its untimely challenge "resulted from excusable neglect, mistake, inadvertence and other good causes[.]" Joint Appendix ("J.A.") 1. The operator argued that because MSHA did not include a duplicate copy of the citation with its penalty assessment, Westfall staff misinterpreted it to be related instead to the "closed" withdrawal order, J.A. 2, and archived both documents in a "closed file." J.A. 14. Westfall claimed that it failed to raise a timely challenge because its managers never reviewed the citation penalty. J.A. 2-3. Westfall thus contended that its neglect was excusable, its misunderstanding was in good faith, and justice weighed in favor of granting its motion. See J.A. 5. The Secretary opposed the motion to reopen, asserting that the penalty assessment was properly issued by MSHA and received by Westfall, that the motion to reopen was untimely, and that there was no good cause to justify reopening the matter. See J.A. 19-25.
In 2022, a two-member majority of the Commission found that, because Westfall "claims not to have received a written citation for the assessment, and the Secretary [of Labor] failed to provide sufficient evidence of a citation," "there is no final order in this case." J.A. 53. Over a strong dissent, the Commission "dismiss[ed] the operator's request to reopen as moot." J.A. 53. It is clear from the record in this case that the Commission's decision cannot withstand review. We note in particular that the Commission's majority opinion relies principally on an assumption that Westfall "claims not to have received a written citation for the assessment." However, Westfall has made no such claim. The majority opinion also rests on a finding that "the Secretary failed to provide sufficient evidence of a citation." The record belies this assertion.
In sum, the Commission's decision relies on a ground not raised or addressed by the parties, is devoid of substantial evidence to support its principal findings, and ignores the potential applicability of Federal Rule of Civil Procedure 60(b) covering motions to reopen. We are therefore constrained to reverse and remand the case for further proceedings.
As noted above, the Mine Act was enacted to "protect the health and safety of the Nation's coal or other miners." 30 U.S.C. § 801(g). It empowers the Secretary of Labor, acting through MSHA, to promulgate mandatory safety and health standards, inspect mines, and enforce the Mine Act by issuing citations, civil penalties, and other orders. Id. §§ 811(a), 813(a), 814(a), 815(a), 817(a), 820(a). The Mine Act also established the Commission, an independent agency empowered to review citation, penalty, and order decisions adjudicated by administrative law judges. Id. §§ 816(a)(1), 823.
Citations and Penalties.
"If, upon inspection or investigation" of a worksite, MSHA finds that an operator has violated the Mine Act, it shall, "with reasonable promptness," issue a citation to the operator that describes "in writing," "with particularity," the nature of the violation. Id. § 814(a) ("section 814 citation"). The default process for calculating penalties is through a regular assessment process, which entails applying a formula to six statutory penalty criteria. Id. § 820(i); 30 C.F.R. § 100.3(a)(1). For regular proposed penalty assessments, "MSHA's Office of Assessments provides operators and, in turn, Judges with an 'Exhibit A' that consists of a penalty report detailing the penalty points assessed under each statutory factor"; the "exhibit provides the operator . . . an explicit explanation of the bases for the proposed penalty." Sec'y of Lab., MSHA v. Am. Coal Co., 38 FMSHRC 1987, 1991 (2016), aff'd sub nom. Am. Coal Co. v. FMSHRC, 933 F.3d 723 (D.C. Cir. 2019).
"MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions warrant a special assessment." 30 C.F.R. § 100.5(a). This will result in a higher penalty than would be associated with a regular assessment. See MSHA, SPECIAL ASSESSMENT GENERAL PROCEDURES 1-2 (2021). "When MSHA determines that a special assessment is appropriate, the proposed penalty [is] based on the six criteria set forth in § 100.3(a)." 30 C.F.R. § 100.5(b). However, "[a]ll findings shall be in narrative form." Id.
"Special assessments . . . take longer to formulate and finalize" than regular assessments, so "[t]here is often a gap between the issuance of the citation and the operator's receipt of the special assessment." Petitioner's Br. 8. In any event, MSHA must notify a cited operator by certified mail "within a reasonable time" of any proposed penalty assessment. 30 U.S.C. § 815(a). MSHA is not required to send the operator a duplicate copy of the section 814 citation alongside its mailed penalty assessment. See 29 C.F.R. § 2700.25; 30 C.F.R. §§ 100.7(a), 100.8(a).
If the mine operator does not respond within thirty days to MSHA's proposed penalty assessment by either paying the fine or notifying the agency of its intention to contest, the proposed penalty is deemed a final order of the Commission and not subject to review by any court or agency. 30 U.S.C. § 815(b)(1)(A).
Reopening a final order.
The Commission may at its discretion reopen a final order, using the Federal Rules of Civil Procedure for guidance. See Jim Walter Res., Inc., 15 FMSHRC 782, 787 (1993) . Rule 60(b) motions to reopen may be based on "mistake, inadvertence, surprise, or excusable neglect;" or "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(1), 60(b)(6). Such motions must be made "within a reasonable time," or - if for reasons of "mistake, inadvertence, or excusable neglect" - not more than one year after the order was entered. Fed.R.Civ.P. 60(c)(1).
Withdrawal orders.
In addition to issuing citations and penalties, MSHA inspectors may issue a withdrawal order, requiring immediate, on-site action to address any "imminent danger" to workers' safety. 30 U.S.C. § 817(a). Withdrawal orders compel all but exempted persons "to be withdrawn from" the designated area until the agency "determines that such imminent danger and the conditions or practices which caused such imminent danger no longer exist." Id. MSHA is not precluded from also issuing citations and proposing penalties after issuing a withdrawal order. See id.
On February 28, 2011, MSHA inspected Westfall's operating site. J.A. 22. MSHA issued six citations for various violations - all of which were assigned regular assessment penalties and paid in full. The MSHA inspector also discovered a Pettibone 30 crane operating on site with no working service brakes and issued two orders: (1) Withdrawal Order No. 6559329, mandating the crane's immediate removal, J.A. 12; and (2) Citation No. 6559330, a section 814 citation describing the safety violation, Petitioner's Br....
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