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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

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

 

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On August 18, 2022, the Commission received from 

Thyssenkrupp Industrial Solutions (“Thyssenkrupp”) 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). The Commission issued an order requesting further information 

from the operator, which Thyssenkrupp timely responded to on August 9, 2023. 

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).

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

THYSSENKRUPP

 INDUSTRIAL SOLUTIONS

:

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: 

: 

: 

: 

: 

:

Docket No. CENT 2022-0219 

A.C. No. 41-00071-551832 

August 18, 2023
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Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 1, 2022, and became a 

final order of the Commission on May 2, 2022. Thyssenkrupp mailed its notice of contest on 

May 23, 2022. Thyssenkrupp asserts that it delayed because it was waiting for the MSHA 

District Office to provide a copy of one of the citations that was missing from the assessment 

package. Thyssenkrupp eventually mailed the notice of contest rather than continuing to wait, 

but due to the delay, the filing was untimely. Thyssenkrupp eventually received a copy of the 

missing citation on June 30, 2022. 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 Thyssenkrupp’s request and the Secretary’s response, we find that 

Thyssenkrupp’s approximately three-week delay in filing while waiting for paperwork was 

excusable. We note that the operator showed a good faith desire to contest the assessment by 

ultimately choosing to file its notice of contest rather than continuing to wait. 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 o this order. See 29 C.F.R. § 2700.28. 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Brandon Witz

Head of Health & Safety

Thyssenkrupp Industrial Solutions

180 Interstate North Pkwy Suite 300

Atlanta GA 30339

brandon.witz@thyssenkrupp.com

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

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov