WASHINGTON, DC 20004-1710




















Docket No. WEVA 2016-627

A.C. No. 46-09091-414434




BEFORE:    Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners






            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.        § 801 et seq. (2012) (“Mine Act”).  On September 29, 2016, the Commission received from Marfork Coal Company (“Marfork”) a motion seeking to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.   § 815(a).


            Under section 105(a), an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment.  If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission.  30 U.S.C. § 815(a).


            We have held, however, that in appropriate circumstances we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”).  In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve 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 as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787.  We have also observed 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.  See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).


            Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on July 7, 2016, and became a final order of the Commission on August 8, 2016.  Marfork asserts that it mailed the contest in this matter on July 22, 2016 to the appropriate address.  The operator included Fed Ex tracking information confirming this date.  The employee charged with mailing the notice of contest inadvertently failed to include the final two pages of the proposed assessment.  As a result, the Secretary did not learn that the operator intended to contest eight citations. 


Marfork did not learn of the mistake until it received a delinquency notice on September 26, 2016.  Marfork avers that employees processing contests will now double check to ensure that all pages are included.  Marfork has not filed any other motions to reopen with the Commission in the last two years and responded immediately upon discovering its mistake.  The Secretary does not oppose the request to reopen. 


            Having reviewed Marfork’s request and the Secretary’s response, we find that the operator inadvertently failed to include two pages of its contest.  In the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.  Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.  See 29 C.F.R. § 2700.28.




/s/ William I. Althen

                                                                                    William I. Althen, Acting Chairman




                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Commissioner




/s/ Michael G. Young

Michael G. Young, Commissioner




/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner




Eric L. Silkwood, Esq.

Hardy Pence, PLLC

P.O. Box 2548

Charleston, WV 25301


Ali Beydoun, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450


Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710


Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450