1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th Street, Suite 443

Denver, Colorado, 80202-2500

Telephone: (303) 844-5267

rmanning@fmshrc.gov

August 18, 2022 

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION

Before: Judge Manning 

This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977. On May 6, 2022, Respondent, 

Cactus Canyon Quarries Inc. (“Cactus Canyon”), filed a Motion for Summary Decision (“CCQ

Mot.”). Subsequently, on August 15, 2022, the Secretary filed his Objection and Response to 

Respondent’s Motion for Summary Decision (“Sec’y Resp.”). 1 I find summary decision is 

inappropriate and DENY Respondent’s motion. 

Although the procedural posture of this case is long and complicated, for purposes of 

this order only certain events need be mentioned. On October 4, 2021, Respondent mailed its 

Notice of Contest to MSHA. Subsequently, on November 26, 2021, i.e., more than 45 days 

after receipt of the Notice of Contest, the Secretary filed a Motion for Extension of Time to File 

Initial Pleading citing the need for “additional time to allow the parties to thoroughly explore 

settlement in this matter.” On December 1, 2021, the Commission’s Chief Administrative Law 

Judge (the “Chief Judge”) found that the Secretary had shown good cause and issued an order 

granting the Secretary’s motion and affording the Secretary until January 18, 2022, to file the 

initial pleading (the “Chief Judge’s Order”). After first asking for reconsideration of the Chief 

Judge’s Order, which was not granted, Respondent filed a petition for discretionary review on 

December 23, 2021, challenging the validity of the Chief Judge’s Order and asking that the case 

be dismissed. On January 4, 2022, the Commission issued a notice stating that “after 

consideration by the Commissioners, no two Commissioners voted to grant the petition [for 

discretionary review] or to otherwise order review.” Finally, on January 18, 2022, the Secretary 

1 At the time Respondent filed its motion the case was stayed pending an appeal to the Fifth 

Circuit Court of Appeals. On July 18, 2022, the Fifth Circuit dismissed the appeal for lack of 

subject matter jurisdiction. Subsequently, I lifted the stay and ordered the Secretary to file his 

response to the motion by no later than August 15, 2022. 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 

 v. 

CACTUS CANYON QUARRIES INC, 

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. CENT 2022-0010-M 

A.C. No. 41-00009-542457 

Fairland Plant & Qys
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electronically filed the petition for assessment of penalty ( the “penalty petition”) with the 

Commission and served the same upon Respondent via email.

Cactus Canyon moves the court to vacate the citations at issue and dismiss the penalty 

petition with prejudice. CCQ Mot. 12. Respondent argues the Commission’s decision in Salt 

Lake County Road Dep’t., 3 FMSHRC 1714 (July 1981), as well as other Commission case law, 

constitute “Black Letter Law” that “when the Secretary is late-filing a petition, the Secretary 

must file the petition to institute the proceeding and file a motion for forgiveness / excuse 

showing good cause to excuse the late filing.” Respondent takes issue with the validity of the 

Chief Judge’s Order and argues the Secretary failed to timely file and serve the penalty petition 

and/or properly show good cause for why the late filing should be excused.

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The Secretary, in his response, argues that the penalty petition was timely filed and 

served pursuant to the deadline set forth in the Chief Judge’s Order. Sec’y Resp. 10-11. The 

Secretary asserts it was within the Chief Judge’s discretion to set a new deadline, which the

Secretary met by electronically filing the penalty petition with the Commission and serving the 

penalty petition on Respondent via email on January 18, 2022. Respondent is not entitled to 

summary decision as a matter of law because there is no issue of material fact that the Secretary 

filed the petition and served Respondent by the deadline set by the Chief Judge.

I will not revisit the validity of the Chief Judge’s Order. The Chief Judge had 

jurisdiction and control over this case when Respondent filed its Notice of Contest on October 

4, 2021, until February 14, 2022, when the case was assigned to me.

3 While the case was under 

his jurisdiction and control, the Chief Judge, citing “good cause having been shown,” saw fit to 

grant the Secretary’s motion for an extension of time to file the penalty petition. Although

Respondent continues to dispute the validity of the Chief Judge’s Order, the issue was appealed

and, on January 4, 2022, the Commission declined to grant the petition for discretionary review 

and the Fifth Circuit subsequently dismissed Respondent’s appeal. Unlike the Commissioners, I 

do not sit in a position of review. Accordingly, I decline to review the Chief Judge’s order. 

Moreover, principals of the “law of the case doctrine” dictate that, absent extraordinary 

circumstances, courts should be loathe to overturn prior decisions of their own or those of a 

coordinate court, i.e., the Chief Judge. Christianson v. Colt Industries Operating Corp., 486 

2 Although other issues, such as the appropriateness of the previous stay and my ability to rule on 

the motion during the pendency of the appeal, were raised in Respondent’s motion, those issues 

are moot and not addressed in this order.

3 The Secretary cites the Supreme Court’s decision in Thunder Basin Coal Co. v. Reich, 510 U.S. 

200, 209 (1994), for the proposition that “actions before the Commission are initiated not by the 

Secretary but by a mine operator who claims to be aggrieved.” I previously found Commission 

jurisdiction began when the Notice of Contest was filed. Cactus Canyon Quarries Inc., 44 

FMSHRC 353, 354 (April 2022) (ALJ). Accordingly, the Chief Judge properly had jurisdiction 

over this case at the time he issued his December 1, 2021 order.
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U.S. 800, 817 (1988).

4 Here, nothing in the record suggests extraordinary circumstances exist

that would warrant revisiting the Chief Judge’s determination that good cause existed for 

granting an extension of time to file beyond the 45-day limit set forth in Commission 

Procedural Rule 28(a).

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Commission case law makes clear that the 45-day time limit is not a statute of 

limitations. Salt Lake at 1715-1716; Rhone-Poulenc of Wy. Co., 15 FMSHRC 2089, 2092-2093 

(Oct. 1993). Further, when adequate cause is shown for a delay in filing a penalty, absent 

evidence of actual prejudice, procedural irregularities are subservient to the substantive purpose 

of the Mine Act to protect miners. Long Branch Energy, 34 FMSHRC 1984, 1990-1991 (Aug. 

2012) (“The requirement in Rule 28(a) to file a penalty petition within 45 days cannot be 

viewed as an avenue for an operator to seek dismissal on a mere technicality.”)

Here, the Chief Judge found good cause to grant the Secretary’s motion for an extension 

of time to file the penalty petition. Moreover, Respondent alleged no actual prejudice. Given 

the absence of extraordinary circumstances or actual prejudice, I see no reason to revisit what 

was already decided by the Chief Judge and unsuccessfully appealed.

Given that the Chief Judge’s order must stand, the only questions that remain are

whether the Secretary timely filed the penalty petition and served Respondent by the date set 

forth in the Chief Judge’s Order.

The Secretary timely filed the penalty petition with the Commission. Commission 

Procedural Rule 5 states that documents filed via electronic transmission are “effective upon 

successful receipt by the Commission.” 29 C.F.R. § 2700.5(f). An email dated January 18, 

2022, from FMSHRC’s eCMS system confirms the penalty petition was timely received by the 

Commission. Sec’y Resp. Ex. I. I find that the Secretary timely filed the penalty petition in 

accordance with deadline set forth in the Chief Judge’s Order.

The Secretary timely served the penalty petition upon Respondent. Commission 

Procedural Rule 7 permits service via electronic mail and provides “service is effective upon 

4 The law of the case doctrine “expresses the practice of courts generally to refuse to reopen 

what has been decided[.]” Christianson at 817 (quoting Messenger v. Anderson, 225 U.S. 436, 

444 (1912)). I note the Sixth Circuit Court of Appeals has held that “a transferee judge ought as 

a practical matter to accord considerable deference to the judgment of the transferor court[,]” In 

re Upjohn Co. Antibiotic Cleocin Prods. Liab. Litig., 664 F.2d 114, 120 (6th Cir. 1981), and as 

“[a]pplied to coordinate courts, the [law of the case] doctrine is a discretionary tool available to 

a court in order to promote judicial efficiency. As such, a decision to reconsider a previously 

decided issue will be deemed erroneous only if it is shown that the transferee court abused its 

discretion.” U.S. V. Todd, 920 F.2d 399, 403 (6th Cir. 1990).

5 Commission Procedural Rule 28(a) states that “[w]ithin 45 days of receipt of a timely contest of 

a proposed penalty assessment, the Secretary shall file with the Commission a petition for 

assessment of penalty.” 29 C.F.R. § 2700.28(a).
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successful receipt by the party intended to be served.” 29 C.F.R. § 2700.7(c). The Certificate 

of Service included with the penalty petition indicates the Secretary emailed the penalty petition 

on January 18, 2022. Moreover, an email dated the same date confirms the Secretary sent a 

digital copy of the penalty petition to Respondent.6

 Sec’y Resp. Ex. J. I find that the Secretary 

timely served the penalty petition in accordance with deadline set forth in the Chief Judge’s 

Order.

For the reasons stated above, Respondent’s Motion for Summary Decision seeking 

dismissal of this case is DENIED.

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Distribution (First Class Mail and email): 

Chris Lopez-Loftis, Esq., Office of the Solicitor, U.S. Department of Labor, MSHA, 525 S. 

Griffin Street, Suite 501, Dallas, TX 75202 (lopez.christopher.d@dol.gov) 

Andy Carson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654 

(acarsonmarblefalls@aol.com ccqmarblefalls@aol.com) 

 

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 The record demonstrates that on January 18, the Secretary emailed the penalty petition to the 

official email address for Respondent and also emailed a copy to Andy Carson, counsel for 

Respondent. 

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 Commission Procedural Rule 67(b) states that the Court may grant summary decision where the 

“entire record...shows: (1) [t]hat there is no genuine issue as to any material fact; and (2) [t]hat 

the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. §2700.67(b). 

Richard W. Manning

Administrative Law Judge