WASHINGTON, DC 20004-1710


















Docket No. WEVA 2019-0479

A.C. No. 46-08610-484227






BEFORE:  Rajkovich, Chairman; Althen and Traynor, 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 December 9, 2019, the Commission received from Rockwell Mining, LLC, (“Rockwell”) 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 March 4, 2019, and became a final order of the Commission on April 4, 2019. Rockwell’s motions say that it had contested the citation at issue in this case, but inadvertently paid the penalty when the proposed assessment was delivered. It learned of its mistake on April 29 and filed a motion to reopen on May 29, 2019.


            The Secretary does not oppose the requests to reopen, but urges the operator to take steps to ensure that future assessments are timely contested.


            Having reviewed Rockwell’s requests and the Secretary’s responses, we find that the operator has sufficiently explained its failure to timely contest the citations at issue as the result of excusable neglect. However, we do note that this is the fifth motion to reopen filed by the operator in the past 24 months.[1] The operator should heed the Secretary’s admonition and take seriously its responsibilities under the Act and should be aware that future motions relying on a similar excuse may be denied.


            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/ Marco M. Rajkovich, Jr.

                                                            Marco M. Rajkovich, Jr., Chairman




                                                            /s/ William I. Althen

                                                            William I. Althen, Commissioner




                                                            /s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner


Distribution (by e-mail):

Mark E. Heath, Esq.

Spilman Thomas and Battle, PLLC

Attorneys for Rockwell Mining, LLC



Emily Toler Scott, Esq.

Office of the Solicitor



Chief Administrative Law Judge Glenn Voisin

Federal Mine Safety & Health Review Commission



Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration


[1] The third and fourth motions to reopen are pending before the Commission. These motions rely on different facts and a different rationale for reopening, and the operator is represented by a different law firm in those motions, which are being consolidated and addressed in another order.