Argued November 7, 2024 Decided June 3, 2025

No. 24-1058

SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, PETITIONER

v.

INDUSTRIAL TURNAROUND CORPORATION 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

Edward V. Hartman, Senior Trial Attorney, U.S. Department of Labor, argued the cause for petitioner. With him on the briefs was Emily Toler Scott, Counsel for Appellate Litigation.

Adrianne Chillemi argued the cause for respondents. With her on the brief were Allen L. West and Roger M. Stevens. Thaddeus J. Riley entered an appearance.

Before: RAO and PAN, Circuit Judges, and GINSBURG, Senior Circuit Judge. 2 Opinion for the Court filed by Senior Circuit Judge GINSBURG.

GINSBURG, Senior Circuit Judge: In August 2022, a bin full of phosphate rock collapsed on three miners, who were severely injured. Industrial TurnAround Corporation (ITAC) was the independent contractor tasked with checking the structural integrity of the support columns for the bin. The Mine Safety and Health Administration (MSHA) sent a notice of a proposed penalty to the address of record for ITAC, alleging a failure to take defective equipment out of service as required by 30 C.F.R. § 56.14100(c). As ITAC did not contest the penalty, it became final 30 days later. Shortly thereafter, ITAC filed a motion with the Federal Mine Safety and Health Review Commission to reopen the penalty on the ground that ITAC had inadvertently failed to update its address of record, which motion the Commission granted. The MSHA now petitions for review of that order, arguing the Commission abused its discretion by reopening the penalty. We hold the Commission’s order is not an appealable collateral order and therefore dismiss the Secretary’s petition for lack of jurisdiction.

I. Background

This petition involves the reviewability of a nonfinal order under the collateral order doctrine. We begin with back- ground regarding the MSHA penalty scheme and the facts of this case. A. Legal Background

The Mine Safety and Health Act (hereinafter the Act) authorizes MSHA inspectors to issue citations to mine operators and their independent contractors for a violation of an applicable safety or health standard. 30 U.S.C. § 814(a); id. 3 § 802(d) (defining “operator” to include an independent con- tractor). After an inspector issues a citation, the Secretary calculates a proposed penalty and “notif[ies] the operator by certified mail of the civil penalty proposed to be assessed.” 30 U.S.C. § 815(a); 30 C.F.R. § 100.7(a). Service of that notice is deemed “completed upon delivery . . . or mailing to the independent contractor’s address of record” on file with the agency. 30 C.F.R. § 45.5. The Act requires every operator of a mine subject to the Act to maintain a current address with the agency. 30 U.S.C. § 819(d).

A proposed penalty becomes final “and not subject to review by any court or agency” 30 days after it was served on the operator unless the operator first notifies the Secretary that it intends to contest the penalty. 30 U.S.C § 815(a); 30 C.F.R. § 100.7(c). The Commission has asserted, however, that it has “jurisdiction to reopen uncontested assessments that have become final Commission orders” under § 815(a). ITAC, 46 FMSHRC 80 (2024) (citing Jim Walter Res., Inc., 15 FMSHRC 782, 786–89 (1993)) (dictum). In deciding whether to reopen a penalty assessment, the Commission is guided, “so far as practicable,” id. (citing 29 C.F.R. § 2700.1(b)), by Federal Rule of Civil Procedure (FRCP) 60(b), which allows for relief from a final order because of “mistake, inadvertence, surprise,