Lone Mountain Processing Inc. v. Secretary of Labor, et al

Filing

OPINION filed [1426144] (Pages: 8) for the Court by Judge Griffith [11-1431]

USCA Case #11-1431

Document #1426144

Filed: 03/19/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2012

Decided March 19, 2013

No. 11-1431
LONE MOUNTAIN PROCESSING, INC.,
PETITIONER
v.
SECRETARY OF LABOR, ET AL.,
RESPONDENTS

On Petition for Review of an Order of the
Federal Mine Safety & Health Review Commission

Noelle Holladay True argued the cause for petitioner.
With her on the briefs was Marco M. Rajkovich Jr. Melanie
Kilpatrick entered an appearance.
Jerald S. Feingold, Attorney, U.S. Department of Labor,
argued the cause for respondents. With him on the brief was
W. Christian Schumann, Counsel. John T. Sullivan, Attorney,
Mine Safety and Health Review Commission, entered an
appearance.
Before: GRIFFITH and KAVANAUGH, Circuit Judges,
SENTELLE, Senior Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.

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GRIFFITH, Circuit Judge: Lone Mountain Processing,
Inc., petitions for review of an order of the Federal Mine
Safety and Health Review Commission denying the
company’s motions to reopen closed civil penalty
proceedings. We remand the order because the Commission
failed to explain its departure from its own precedent.
I
Under the Federal Mine Safety and Health Act of 1977,
the Mine Safety and Health Administration (MSHA) inspects
mines, issues citations for safety violations, and proposes civil
penalties, all on behalf of the Secretary of Labor. See 30
U.S.C. §§ 813-815; OFFICE OF THE FEDERAL REGISTER,
UNITED STATES GOVERNMENT MANUAL 2012, at 258 (2012).
The Commission assesses the penalties and adjudicates
disputes over their terms. See 30 U.S.C. §§ 815, 820(i); see
also 30 U.S.C. § 823 (establishing the Commission). In other
words, MSHA plays the roles of police and prosecutor, and
the Commission plays the role of judge.
A mine operator has thirty days to contest a citation and
another thirty days to challenge any proposed penalties. See
30 U.S.C. § 815(a).
If, within 30 days from the receipt of the
notification . . ., the operator fails to notify the Secretary
that he intends to contest the citation or the proposed
assessment of penalty, . . . the citation and the proposed
assessment of penalty shall be deemed a final order of the
Commission and not subject to review by any court or
agency.
Id.

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In June 2010, MSHA cited Lone Mountain thirteen times
for a range of regulatory violations. In July 2010, the
company filed timely “notices of contest” with the
Commission. But when, in August 2010, Lone Mountain
received proposed penalty assessments in connection with one
group of citations, the company failed to challenge them
within the thirty-day window. See id. In December 2010,
MSHA mailed Lone Mountain a notice of delinquency,
reminding Lone Mountain that it had missed the thirty-day
deadline and requesting immediate payment of the now-final
penalty assessment, plus accrued interest. In 2011, the process
repeated itself: MSHA mailed a proposed assessment in
January for a second set of citations issued in June 2010;
Lone Mountain missed the thirty-day deadline to contest; and,
in April, MSHA mailed a notice of delinquency. In June 2011
— six months after receiving its first notice of delinquency
and two months after receiving the second — Lone Mountain
finally filed motions to reopen the first two civil penalty cases
in which proposed assessments had become final orders. After
filing its motions to reopen, Lone Mountain let history repeat
itself. In July 2011, Lone Mountain failed to respond to a
third proposed civil penalty assessment notice, and, in
September 2011, filed a third motion to reopen. In each of its
motions, Lone Mountain’s only excuse was, essentially, that
the proposed penalty assessment notices got lost in the mail
— not the mail system of the United States Postal Service, but
rather the internal mail system operated by the company.
On October 11, 2011, the Commission issued an order
consolidating and denying Lone Mountain’s motions, holding
that Lone Mountain “failed to establish good cause” for
reopening. See Lone Mountain Processing, Inc., 33 FMSHRC
2373, 2376 (2011).

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II
The Act gives the Commission the power to set most of
its own procedures, see 30 U.S.C. § 823(d)(2), which it has
done through a series of regulations. Of particular relevance
to this dispute is a regulation that provides:
On any procedural question not regulated by the Act,
these Procedural Rules, or the Administrative Procedure
Act . . ., the Commission and its Judges shall be guided
so far as practicable by the Federal Rules of Civil
Procedure[.]
29 C.F.R. § 2700.1(b) (emphasis added). Congress could have
made the Federal Rules applicable to the Commission but did
not. Compare 30 U.S.C. § 823(d)(2) (granting the
Commission authority to set many of its own procedural
rules) with 29 U.S.C. § 661(g) (making the Federal Rules of
Civil Procedure applicable by default rule to adjudications
conducted by the Occupational Safety and Health Review
Commission). And as the phrase “guided so far as
practicable” demonstrates, the Commission has not bound
itself to follow the Federal Rules, either; rather, the
Commission has decided that they will serve as a model.
Following the guidance of Federal Rule of Civil
Procedure 60(b), the Commission has long held that it may
reopen otherwise final orders, see, e.g., Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (1993), including those that have
been rendered final pursuant to 30 U.S.C. § 815(a). See, e.g.,
Rocky Hollow Coal Co., Inc., 16 FMSHRC 1931, 1931-32
(1994). Rule 60(b) states, “[o]n motion and just terms, the
court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following
reasons: . . . mistake, inadvertence, surprise, or excusable

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neglect[.]” FED. R. CIV. P. 60(b). Thus, by its own choice, the
Commission must be “guided so far as practicable” by a rule
that states that it “may” reopen final orders. This leaves the
Commission with much discretion, but that discretion is not
unfettered.
Lone Mountain argues that the Commission abused that
discretion by departing from its own precedent without
explanation, and we agree. We need not consider, therefore,
Lone Mountain’s alternate arguments that Rule 60(b) and the
cases interpreting it call for reopening or that general
principles of equity require the same. We leave those to the
Commission on remand.
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.
Though Lone Mountain did not timely contest MSHA’s
proposed penalty assessments, it did contest the underlying
citations. In past orders granting motions to reopen, the
Commission has repeatedly stated that the timely challenge to
a citation gives a “clear” indication that a mine operator also
“intend[s] to contest the proposed penalty for that citation.”
Oldcastle Stone Prods., 31 FMSHRC 1103, 1104 (2009); see
also McCoy Elkhorn Coal Corp., 33 FMSHRC 1, 2 (2011)
(applying a similar rule as Oldcastle); Phelps Dodge Sierrita,
Inc., 24 FMSHRC 661, 662 (2002) (same). Similarly, Lone
Mountain highlighted in its motions to reopen that it had
timely contested the initial MSHA citations. The
Commission, however, seems to have missed the point. It

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failed to discuss both Lone Mountain’s timely contests, and
the relevant precedent. If the Commission had been
“supply[ing] a reasoned analysis” regarding its “prior policies
and standards,” Greater Boston Television Corp. v. FCC, 444
F.2d 841, 852 (D.C. Cir. 1970), it would have either held that
Oldcastle Stone Products and similar Commission orders
involving timely citation contests cut in favor of Lone
Mountain, or 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. Because the Commission failed to
do so, we hold that the order is arbitrary and capricious. As
we have long held, “an agency changing its course must
supply a reasoned analysis indicating that prior policies and
standards are being deliberately changed, not casually
ignored.” Greater Boston Television Corp., 444 F.2d at 852.
Failing to supply such analysis renders the agency’s action
arbitrary and capricious. See, e.g., Ramaprakash v. FAA, 346
F.3d 1121 (D.C. Cir. 2003).
It is important to note that we do not require agencies to
address every conceivably relevant line of precedent in their
archives. For instance, “[w]e may permit agency action to
stand without elaborate explanation where distinctions
between the case under review and the asserted precedent are
so plain that no inconsistency appears.” Bush-Quayle ‘92
Primary Comm., Inc. v. FEC, 104 F.3d 448, 454 (D.C. Cir.
1997). Furthermore, as then-Judge Roberts wrote, “[a]n
agency is by no means required to distinguish every precedent
cited to it by an aggrieved party.” LeMoyne-Owen Coll. v.
NLRB, 357 F.3d 55, 60 (D.C. Cir. 2004) (citations omitted).
But an agency must address precedent directly on point.
Here, the resemblance between the present case and cases
involving timely citation contests — for instance, Oldcastle

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Stone Products, McCoy Elkhorn Coal Corp., and Phelps
Dodge Sierrita—is significant enough that it is incumbent
upon the Commission to explain why the line of precedent
either does not apply, or why departure from that line is
warranted in this case. In particular, when weighing the
various factors for and against granting the motions to reopen,
the Commission must be clearer in articulating “which factors
are significant and which less so, and why.” LeMoyne-Owen
Coll., 357 F.3d at 61.
To be sure, there may be reasons for the Commission to
deny Lone Mountain’s motions to reopen. Lone Mountain
waited six months after receiving its first notice of
delinquency to file its first motion to reopen. Lone Mountain
also failed to contest a third proposed penalty assessment
even after filing the first and second motions to reopen.
Indeed, the Commission cited prior orders holding that these
factors worked against granting motions to reopen. See Lone
Mountain Processing, Inc., 33 FMSHRC at 2375. But the
crucial issue is not what the Commission included, but what
the Commission omitted: any discussion of Lone Mountain’s
timely challenge of its citations. Because the Commission
failed to explain why such challenges justified granting
motions to reopen in the prior orders in which mine operators
had timely contested their citations, but not in Lone Mountain,
we must remand.
In this case, “[r]emand will permit the Commission to
justify its approach or to reconsider its . . . determination.”
Bush-Quayle ’92 Primary Comm., Inc., 104 F.3d at 455. The
Commission may well arrive at the same result it reached
originally, see, e.g., Heartland Regional Med. Ctr. v. Leavitt,
415 F.3d 24 (D.C. Cir. 2005), but it must do so with more
clarity than it showed in the first instance. If the Commission
did indeed carefully deliberate over whether the facts in this

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case distinguish it in a material way from the precedent
crediting timely citation contests, then it will be easy for the
Commission to address the issue on remand.
III
For the foregoing reasons, we grant the petition for
review and remand the order to the Commission for
reconsideration consistent with this opinion.
So ordered.

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