Secretary of Labor v. Westfall Aggregate & Materials, Inc. (AMENDED OPINION) ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted January 12, 2023 Decided April 7, 2023
Reissued June 6, 2023
No. 22-1088
SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER
v.
WESTFALL AGGREGATE & MATERIALS, INC. AND FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENTS
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.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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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
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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
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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.
I. BACKGROUND
A. Statutory and Regulatory Background
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
5
(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) (explaining that, “[i]n reopening
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final orders, the Commission has found guidance in, and has
applied, ‘so far as practicable,’ Rule 60(b) [of the Federal Rules
of Civil Procedure], dealing with relief from judgments or
orders.” (citing 29 C.F.R. § 2700.1(b))). 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.B. Factual Background
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. Addendum (“add.”) C.
Westfall immediately complied with Withdrawal Order No.
6559329 by removing the Pettibone 30 crane from the
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worksite. J.A. 13. That order clearly states, “Citation NO.
6559330 is being issued in conjunction with this order.” J.A.
12. Five minutes later, MSHA served a Westfall manager with
the referenced citation. Petitioner’s Br. add. C. The citation
explains that it was issued in response to the same event as the
withdrawal order. See id. And it describes the non-working
brakes as a “hazard” that could result in “[c]rushing fatal
injuries[.]” Id.Finding that “[t]he gravity of the violation was considered
serious,” MSHA determined that the proposed penalty
warranted a special assessment. J.A. 11. “Based on the six
criteria set forth in 30 C.F.R. l00.3(a)” and information
provided to it, MSHA “proposed that [Westfall] be assessed a
civil penalty of $16,400.” J.A. 11. MSHA sent the proposed
penalty to the operator via FedEx. A Westfall employee signed
for the FedEx package on July 20, 2011. See J.A. 28. The
mailing explained to Westfall that it had “30 days from receipt
of [the] proposed assessment” to pay or contest the fee before
it was deemed a final order of the Commission. J.A. 7, 8.
Westfall did not contest the Citation No. 6559330 proposed
penalty assessment. Thus, it was deemed a final order thirty
days later, on August 19, 2011 (“2011 Final Order”). See
30 U.S.C. § 815(a).
Two months later, on October 6, 2011, MSHA notified
Westfall that interest on the 2011 Final Order penalty would
accrue if Westfall remained delinquent. On June 13, 2019,
MSHA issued Westfall an additional citation for its ongoing
failure to pay for its mounting civil penalties. Westfall did not
respond.
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C. Procedural Background
Eight years after the proposed penalty assessment was
deemed a final order of the Commission, Westfall entered into
a payment plan with MSHA and filed a motion to reopen with
the Commission. As explained above, Westfall contended that
“excusable neglect, mistake, inadvertence, and other good
causes” justified reopening. J.A. 1. The operator conceded that
it had received the proposed penalty. But it claimed that
members of the Westfall staff “mistakenly and inadvertently
interpreted [it] as a non issue or error” because they believed it
to be associated with the long-resolved Withdrawal Order No.
6559329. J.A. 4, 14. Westfall claimed that its staff “placed the
Citation #6559330 [penalty assessment] in the [Withdrawal
Order] #6559329 ‘closed file.’” J.A. 14. Westfall also claimed
that “[t]he clear absence of the ‘Mine Citation/Order’ form
from the Citation #6559330 [proposed penalty assessment]
compounded the confusion.” J.A. 36. Due to the operator’s
“mistake[s], Petitioner’s management never saw or reviewed
Citation #6559330 and therefore was not in a position to or
aware of the need to timely contest Citation #6559330.” J.A. 2.
In further support of its motion, Westfall pointed to its
“clear history of timely contesting MSHA citations” as
evidence that it would have timely contested the citation “[i]f
Petitioner’s management had been aware of Citation
#6559330.” J.A. 4. It pointed to its immediate compliance with
the withdrawal order and subsequent reforms to internal
“procedures and protocol[s]” as indicative of its good faith.
J.A. 5. And it explained that its lack of familiarity with MSHA
enforcement procedures contributed to its staff’s “inadvertent
and mistaken interpretation and treatment of [Withdrawal
Order] #6559329 and Citation #6559330.” J.A. 5.
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In response to Westfall’s motion, the Secretary argued that
the “extraordinary remedy” of reopening should not be granted.
The Secretary contended that Westfall’s Rule 60(b)(1) motion
alleging “mistake, inadvertence, surprise, or excusable
neglect,” should have been raised “not more than one year after
final judgment.” J.A. 19-20, 22-25. In response, Westfall
disavowed any claim for relief under Rule 60(b)(1) and instead
rested on the catch-all language of Rule 60(b)(6) (which
provides that a motion to reopen may be granted for “any other
reason justifying relief”). J.A. 48. The operator reiterated the
claim that its “failure to be aware of [and respond to] the
assessment at an earlier date was a direct result of the confusing
language and the presentation of the initial citation[.]” J.A. 49.
In 2022, a two-member Commission majority dismissed
Westfall’s motion to reopen as moot and effectively vacated
the contested final order. It ignored Westfall’s actual
allegations and found instead that the operator had “claim[ed]
not to have received a written citation for the [penalty]
assessment.” J.A. 53. The majority cited nothing in the record
to support this assertion. The majority also concluded that the
Secretary did not provide evidence that Citation No. 6559330
existed and therefore concluded that it could not “find that the
assessment for violation No. 6559330 ever became a final
Commission order” from which relief could be granted. J.A.
53. In support of its decision, the majority cited one case,
Dittrich Mechanical and Fabrication, Inc., 32 FMSHRC 1599(2010), in which the Commission held that “if the Secretary
fails to provide [evidence of a properly issued citation],” then
the Commission “cannot find that the assessment was ever
effective.” J.A. 52 (citation and internal quotation marks
omitted).
The dissenting member of the Commission objected to the
majority’s disposition of the case because, in his view, “the
10
record establishes that a citation was validly issued pursuant to
section 104(a) of the Mine Act, there is a final order, and the
motion to reopen was filed out of time.” J.A. 57. The dissent
also pointed out that this case “is readily distinguishable from
Dittrich” because “Westfall concedes that it received a citation
in writing from MSHA.” J.A. 55.
The Secretary now petitions for review of the
Commission’s decision. For the reasons explained below, we
grant the Secretary’s petition, reverse the decision of the
Commission, and remand the case for further proceedings.
II. ANALYSIS
A. Standard of Review
The Secretary filed a petition for review with this court on
May 23, 2022, within 30 days of the Commission’s order, as
required by the Mine Act. 30 U.S.C. § 816(b). This court has
jurisdiction to review the final order of the Commission. Id.“Upon such filing, the court . . . shall have the power to make
and enter upon the pleadings, testimony, and proceedings set
forth in such record a decree affirming, modifying, or setting
aside, in whole or in part, the order of the Commission and
enforcing the same to the extent that such order is affirmed or
modified.” Id. § 816(a)(1); see also id. § 816(b) (“[T]he
provisions of subsection (a) shall govern [petitions for review
filed by the Secretary] to the extent applicable.”).
The Mine Act states that, “[e]xcept as otherwise
provided[,] . . . sections 551 to 559 and sections 701 to 706 of
[the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-
559, 701-706] shall not apply to [Commission orders], or to
any proceeding for the review thereof.” 30 U.S.C. § 956. The
11
standards controlling judicial review of Commission orders are
therefore governed by the Mine Act and general administrative
law principles. See Sec’y of Lab. v. Twentymile Coal Co., 456
F.3d 151, 159 (D.C. Cir. 2006) (“[T]he fact that § 701(a)(2) [of
the APA] itself is inapplicable does not mean that the principles
underlying it are also inapplicable.”); see also KenAmerican
Res., Inc. v. United States Sec’y of Lab., 33 F.4th 884, 888 (6th
Cir. 2022).
“We review the factual findings of the Commission to
ascertain if they are supported by substantial evidence; we
review questions of law de novo; and we review the ALJ’s
evidentiary rulings for an abuse of discretion.” Mach Mining,
LLC v. Sec’y of Lab., MSHA, 728 F.3d 643, 659 (7th Cir. 2013)
(internal citations omitted). “The findings of the Commission
with respect to questions of fact, if supported by substantial
evidence on the record considered as a whole, shall be
conclusive.” 30 U.S.C. § 816(a)(1); see Marshall Cnty. Coal
Co. v. FMSHRC, 923 F.3d 192, 201 (D.C. Cir. 2019);
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1028
(D.C. Cir. 2013); Sec’y of Lab. v. Keystone Coal Mining Corp.,
151 F.3d 1096, 1104 (D.C. Cir. 1998). “Substantial evidence is
determined by evaluating whether there is such relevant
evidence as a reasonable mind might accept as adequate to
support the [Commission’s] conclusion.” Nat’l Cement Co. v.
FMSHRC, 27 F.3d 526, 530 (11th Cir. 1994) (quoting Chaney
Creek Coal Corp. v. FMSHRC, 866 F.2d 1424, 1431 (D.C. Cir.
1989) (internal quotation marks omitted)). “Substantial
evidence requires more than a scintilla but less than a
preponderance.” Plateau Mining Corp. v. FMSHRC, 519 F.3d
1176, 1194 (10th Cir. 2008) (internal quotation marks omitted).
Although the APA does not apply in judicial review of
Commission orders, we are nonetheless guided by general
administrative law principles in reviewing the Commission’s
12
orders for abuse of discretion. Noranda Alumina, LLC v. Perez,
841 F.3d 661, 664 (5th Cir. 2016). For example, as the Fifth
Circuit pointed out in Noranda Alumina, “[i]n both judicial and
administrative contexts, courts review denials of motions to
reopen for abuse of discretion.” Id. And this court has made it
clear that the Commission is bound by the principles of
reasoned decision-making when adjudicating cases before it.
See Leeco, Inc. v. Hays, 965 F.2d 1081, 1085 (D.C. Cir. 1992)
(“It is especially important in cases where the [Commission]
has taken a sharp turn from prior holdings that its actions be
supported by reasoned decision-making.”). Thus, we have
found that the Commission abused its discretion by departing
from its own precedent without explanation. See Lone
Mountain Processing, Inc. v. Sec’y of Lab., 709 F.3d 1161,
1163 (D.C. Cir. 2013).
It is also clear that a party may challenge an adverse order
issued against it if it did not have a “full and fair opportunity to
litigate” an important issue in an agency adjudication. See, e.g.,
First Nat’l Bank of Gordon v. Dep’t of Treasury, Off. of
Comptroller of Currency, 911 F.2d 57, 62 (8th Cir. 1990).
When an agency has failed to consider “conspicuous issues”
that were before it, its failure “raises doubts about whether the
agency appreciated the scope of its discretion or exercised that
discretion in a reasonable manner.” Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal., 140 S. Ct. 1891, 1916 (2020). In
such situations, the appropriate recourse is to remand the case
to the agency “so that it may consider the problem anew.” Id.13
B. The Commission Erred in Deciding This Case on
Grounds That Were Never Raised or Litigated by
the Parties
As a rule, “we rely on the parties to frame the issues for
decision” because “[o]ur adversary system is designed around
the premise that the parties know what is best for them[.]”
Greenlaw v. United States, 554 U.S. 237, 243-44 (2008)
(citation and internal quotation marks omitted). Furthermore,
“[i]t is a basic tenet of administrative law that each party to a
formal adjudication must have a full and fair opportunity to
litigate the issues to be decided by the agency.” Trident
Seafoods, Inc. v. NLRB, 101 F.3d 111, 116 (D.C. Cir. 1996).
In this case, the Commission clearly ignored the facts and
arguments presented by Westfall. Instead, it sua sponte
purported to resolve this case on grounds that were not raised
or litigated by the parties and pursuant to findings not
supported by the record. This is the antithesis of reasoned
decision-making. See Fred Meyer Stores, Inc. v. NLRB, 865
F.3d 630, 638 (D.C. Cir. 2017) (“Having carefully examined
both the Board’s findings and its reasoning, we conclude the
Board’s opinion is more disingenuous than dispositive; it
evidences a complete failure to reasonably reflect upon the
information contained in the record and grapple with contrary
evidence—disregarding entirely the need for reasoned
decisionmaking.”); see also Nat’l Mining Ass’n v. Dep’t of
Lab., 292 F.3d 849, 871 (D.C. Cir. 2002) (reasoned decision-
making requires consideration of relevant evidence in the
record).
The Commission majority opinion says that Westfall
“claim[ed] not to have received a written citation for the
[penalty] assessment.” J.A. 53. There is nothing in the record
to support this assertion. Rather, the record indicates that
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Westfall claimed that “excusable neglect, mistake,
inadvertence, and other good causes” justified reopening this
matter eight years after the disputed citation was deemed a final
order of the Commission. J.A. 1. As discussed above, Westfall
argued that its failure to raise a timely challenge was due to a
“perfect storm of unintended and unfortunate events” resulting
from its own staff’s confusion and filing errors. J.A. 2, 5. In
other words, the operator argued only that its failure to file a
timely challenge should be excused – not that it had never
received a citation.
What is worse is that the Commission never put the parties
on notice that there was any issue regarding whether Westfall
“claim[ed] not to have received a written citation.” As a result,
the parties never litigated this matter in the adjudication before
the Commission. Indeed, the Secretary has made it clear to this
court that had he been on notice that “the question of the
issuance of Citation 6559330 was before the Commission,” he
“would have attached it to his response[.]” Petitioner’s Br. 42-
43. He has done so here. See id. add. C. And in reviewing the
relevant materials, we have no doubt that the record supports
the Secretary, not the Commission.
Not only did the Commission attribute to Westfall a claim
that the operator never made, but it failed to address claims that
Westfall did make in support of its motion to reopen. Westfall’s
motion may or may not have merit. This remains to be seen.
What is clear here, however, is that the Commission erred in
holding that the operator’s request to reopen was “moot.” J.A.
53. We amplify this point below.
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C. The Commission’s Decision Finds No Support in the
Record or in Any Applicable Precedent
As explained above, the Commission’s decision relies on
an unfounded assumption that Westfall claimed not to have
received a written citation for the special assessment. Not only
did Westfall not make the claim attributed to it by the
Commission, but there is also nothing in evidence submitted by
the parties to support the Commission’s decision. This error
completely distorted the Commission’s judgment. What the
record shows is that Westfall claimed only that its
“management never saw or reviewed Citation #6559330”;
however, the operator readily conceded that its “office staff
received Citation #6559330[.]” J.A. 2 (emphasis added).
The simple point here is that there can be no reasoned
decision-making when an agency relies on findings that are not
supported by the record. See Dep’t of Com. v. New York, 139
S. Ct. 2551, 2575-76 (2019) (affirming “remand[] to the
agency” where “the evidence tells a story that does not match
the explanation” given by the agency); FERC v. Elec. Power
Supply Ass’n, 577 U.S. 260, 295 (2016) (a reasoned decision is
one that rests on “adequate support in the record”); Prairie
State Generating Co. LLC v. Sec’y of Lab., MSHA, 792 F.3d
82, 94 (D.C. Cir. 2015) (review must be “limited to assessing
the record that was actually before the agency” (quoting Ass’n
of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 441
(D.C. Cir. 2012))); Gilbert v. FMSHRC, 866 F.2d 1433, 1440,
1443 (D.C. Cir. 1989) (remanding where the court could find
no basis in the record to support the Commission’s judgment).
In this same vein, the Commission’s finding that the
Secretary “failed to provide sufficient evidence of a citation,”
J.A. 53, is baseless. The citation was absent from the case
record not because it was not delivered to Westfall, but because
16
no party believed it was at issue in the adjudication before the
Commission. As already discussed, the record is replete with
references to the citation, and the Secretary attached it to his
briefings before this court. Petitioner’s Br. add. C. And it is of
no moment that the citation was absent from “MSHA’s special
assessment.” J.A. 53. The law is clear that MSHA is not
obligated to include a copy of its citations in its penalty
assessments, see 29 C.F.R. § 2700.25; 30 C.F.R. § 100.7(a), so
it does not matter that the citation was absent from MSHA’s
special assessment. As the dissent points out, what matters here
is that “Westfall unambiguously concedes that it received a
copy of Citation No. 6559330 in writing[.]” J.A. 54.
In an effort to bolster its disposition, the majority opinion
cites Dittrich, 32 FMSHRC 1599. According to the majority,
Dittrich makes it clear that “if an operator claims not to have
received a written citation, . . . the Secretary must provide
evidence that such a citation had been issued. And if the
Secretary fails to provide such evidence, the Commission
‘cannot find that the assessment was ever effective.’” J.A. 52
(quoting Dittrich, 32 FMSHRC at 1600). In Dittrich, the
operator argued that “it never received a copy of the . . .
citations that [were] the subject of the proposed penalty
assessment at issue.” 32 FMSHRC at 1599. However, Westfall
has made no such claim in this case. Additionally, as the
dissenting opinion aptly explains, the decision in Dittrich is
plainly distinguishable from this case on every other score:
Westfall concedes that it received a citation in
writing from MSHA[.] . . . Additionally, the record also
contains a copy of Order No. 6559329 which states that
“Citation N[O]. 6559330 is being issued in conjunction
with this order.” Westfall Ex. B [J.A. 12]. The order
and citation were issued after a[] MSHA inspector
17
observed a crane operating at the mine without service
brakes. Id.; Westfall Ex. A[] [J.A. 11].
Furthermore, this proceeding, unlike Dittrich,
involves the issuance of a specially assessed penalty.
Typically, the Secretary of Labor proposes civil
penalties pursuant to his regulations at
30 C.F.R. § 100.3. If the Secretary determines that
conditions warrant a specially assessed penalty, he
may waive the regular assessment process.
30 C.F.R. § 100.5[a]. For special assessments, “[a]ll
findings shall be in narrative form.” 30 C.F.R. §
100.5(b). The Secretary’s narrative findings for the
citation and special assessment received by Westfall in
this proceeding contain all the information that MSHA
is required to provide according to section 104(a),
30 U.S.C. [§] 814(a), of the Mine Act. . . . Thus, the
record demonstrates that the Secretary’s section 104(a)
obligations were fully satisfied.
In Dittrich, the only evidence that a citation had
been issued was a print-out from MSHA’s website. 32
FMSHRC at 1601. The Commission found that
“internal MSHA documentation regarding the
violations” does not evidence that the citations were
issued to the operator. Dittrich, 32 FMSHRC at 1600,
1600 n.1. Here, of course, the operator concedes that it
was issued the narrative findings for a specially
assessed penalty. Westfall Ex. A [] [J.A. 11]. My
colleagues wrongly assert that the special assessment
is “an internal MSHA document.” Slip op. at 3. [J.A.
53.] The record reflects not only that the document was
issued to Westfall as required by 30 C.F.R. § 100.5, but
also that it was received and signed for by Westfall.
Westfall Ex. A [] [J.A. 11, 28-30].
18
J.A. 55-57. We agree with the dissenting opinion’s analysis of
Dittrich and with the distinctions drawn between that case and
this one.
Considering the record before us, the Secretary’s petition
for review must be granted. The Commission dismissed
Westfall’s motion to reopen as moot after concluding that there
was no final order in this case. There is no substantial evidence
or legitimate legal basis to justify this conclusion. We therefore
reverse the Commission’s decision. The record plainly shows
that, after receiving proper notice, Westfall failed to timely
contest the Citation No. 6559330 proposed penalty assessment.
As a result, the penalty assessment was deemed a final order of
the Commission in August 2011. It was not until eight years
after the disputed penalty assessment was deemed a final order
that Westfall filed a motion with the Commission to reopen the
matter. It is unclear whether Westfall’s motion has merit; it is
quite clear, however, that it is not moot.
The issue before the Commission was whether to grant or
deny Westfall’s motion to reopen filed nearly a decade after the
special assessment was deemed a final order. The Commission
has never addressed this issue. The matter is live and will
remain so until the Commission considers the motion on its
merits and addresses the issues raised by Westfall and the
Secretary. We therefore remand the case so that Westfall’s
motion can be properly adjudicated before the Commission.
D. The Case Will Be Remanded to the Commission for
Review and Proper Disposition
Both parties have suggested that the court should resolve
this dispute on the merits. See Petitioner’s Reply Br. 17;
Respondent’s Br. 47. We decline the invitation. The
19
Commission has the authority and responsibility to consider a
matter such as this in the first instance, see
29 C.F.R. § 2700.1(b); Fed. R. Civ. P. 60(b)(1), (6), subject to
judicial review, 30 U.S.C. § 816. There is nothing for the court
to review with respect to any disposition of Westfall’s motion
to reopen because the Commission has yet to address the merits
of the matter as required by the Mine Act and the applicable
regulations.
In addressing motions to reopen, the Commission has
explained “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.” Sec’y of Lab., MSHA v.
Copenhaver Constr., Inc., 43 FMSHRC 113, 113 (2021).
Factors considered include: whether “the operator acted at all
times in good faith and without any purpose of evasion or
delay,” Sec’y of Lab., MSHA v. Lone Mountain Processing,
Inc., 35 FMSHRC 3342, 3346 (2013); “whether errors were
within the operator’s control,” id.; whether the errors “reflect
indifference, inattention, inadequate or unreliable office
procedures or general carelessness,” Sec’y of Lab., MSHA v.
Noranda Alumina, LLC, 39 FMSHRC 441, 443 (2017)
(internal quotation marks omitted); whether “the error resulted
from mistakes that the operator typically does not make,” id.;
and whether “procedures to prevent, identify and correct such
mistakes have been adopted or changed, as appropriate.” Id.While the Commission’s “good cause” test is flexible, it is
by no means lenient. The Commission has strictly observed the
one-year time limit relating to Rule 60(b) motions and
narrowly interpreted the “reasonable time” constraint imposed
by Rule 60(c). See, e.g., Wayne J. Sand & Gravel Inc. v. Sec’y
of Lab., MSHA, 43 FMSHRC 386, 387 (2021) (denying a
motion filed more than 16 months after the issuance of a default
20
order); Sec’y of Lab., MSHA v. Highland Mining Co., 31
FMSHRC 1313, 1316-17 (2009) (only motions to reopen filed
within thirty days are “presumptively considered as having
been filed within a reasonable time”). And it has rejected
motions to reopen where petitioners cite flaws with their own
internal processes for managing citations. See Lone Mountain
Processing, Inc., 35 FMSHRC at 3346 (“We have repeatedly
and unequivocally held that a failure to contest a proposed
assessment as a result of an inadequate or unreliable internal
processing system does not establish grounds for reopening an
assessment”); Sec’y of Lab., MSHA v. Moose Lake Aggregates,
LLC, 34 FMSHRC 1, 2 (2012) (“[I]t is the operator’s
responsibility to make sure that its employees receiving
mail . . . are properly instructed regarding the significance and
correct processing of MSHA correspondence.”).
In this case, the Commission did not conduct a multi-factor
good cause analysis. Nor did it explain the extent to which the
commands of Rule 60 are relevant in a case such as this. These
are telling omissions given that the Commission has “much
discretion” to apply the Federal Rules of Civil Procedure “so
far as practicable.” Lone Mountain Processing, Inc., 709 F.3d
at 1163 (citation and internal quotation marks omitted). And
the Commission failed to assess whether Westfall could
“carr[y] the burden of establishing its entitlement to
extraordinary relief.” Sec’y of Lab., MSHA v. Left Fork Mining
Co., Inc., 31 FMSHRC 8, 11 (2009).
We “cannot do [the Commission’s] work for it.” Children’s
Hosp. & Research Ctr. of Oakland, Inc. v. NLRB, 793 F.3d 56,
59 (D.C. Cir. 2015). As the agency statutorily empowered to
adjudicate a case of this sort, the Commission “can bring its
expertise to bear upon the matter; it can evaluate the evidence;
it can make an initial determination; and, in doing so, it can,
through informed discussion and analysis, help a court later
21
determine whether its decision exceeds the leeway that the law
provides.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 17 (2002).
Therefore, remand is the appropriate recourse. Regents, 140 S.
Ct. at 1916.
III. CONCLUSION
For the foregoing reasons, we grant the Secretary’s petition
for review, reverse the Commission’s decision dismissing
Westfall’s motion to reopen as moot, and remand the case for
a prompt disposition of this matter consistent with this opinion.
So ordered.