WASHINGTON, DC 20004-1710






















Docket No. WEVA 2022-0426

A.C. No. 46-09221-552354



BEFORE:  Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners







            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On June 27, 2022, the Commission received from Mammoth Coal Company (“Mammoth”) 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) of the Mine Act, 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 April 11, 2022, and became a final order of the Commission on May 11, 2022. The operator asserts that the late filing of the notice of contest was due to a clerical error. Specifically, the executive assistant who received the proposed assessment entered it into the tracking system but inadvertently left it under “New” status instead of changing it to “Ready for Safety Review” status. This caused Mammoth to miss the deadline to contest. Mammoth Coal asserts that its procedures are usually adequate and have worked well in the past, that it normally pays close attention to MSHA’s Proposed Assessments. The operator promises that, in the future, the executive assistant will timely move all proposed assessments to “Ready for Review” status. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.


            Having reviewed Mammoth’s request and the Secretary’s response, we find that the operator acted with excusable neglect due to the clerical error that occurred and promptly sought to reopen once the error was discovered. 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/ Mary Lu Jordan

Mary Lu Jordan, Chair





/s/ William I. Althen

William I. Althen, Commissioner





/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner





/s/ Timothy J. Baker

Timothy J. Baker, Commissioner





James P. McHugh, Esq.

Hardy Pence, PLLC

10 Hale Street, 4th Floor

PO Box 2548

Charleston, WV 25329-2548



Emily Toler Scott, Esq.

Counsel, Appellate Litigation

Division of Mine Safety and Health

Office of the Solicitor

U.S. Department of Labor

201 12th Street South – Suite 401

Arlington, VA 22202-5450



April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202



Melanie Garris


201 12th Street South, Suite 401

Arlington, VA 22202



Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710