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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 April 26, 2022, the Commission received from Sun West 

Acquisition Corporation (“Sun West”) 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). 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

SUN WEST ACQUISITION 

CORPORATION 

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: 

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 : 

Docket No. SE 2022-0100 

A.C. No. 08-00729-532107 

March 13, 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 8, 2021, and became a 

final order of the Commission on May 10, 2021. Sun West asserts that due to “loss of . . . staff,”

it did not receive the penalty assessment until after the 30 days had passed. Sun West’s Motion 

at 1. Although the Secretary does not oppose the request to reopen, he notes that the unpaid 

penalty was referred to the U.S. Department of Treasury for collection on June 25, 2021. 

We note that Sun West fails to allege specific facts to explain why it neglected to timely 

contest the proposed assessment. The operator merely states that it was “unable to contest the 

case in a timely manner due to loss of some of [their] . . . staff and didn’t receive notice until the 

30 days had passed.” Id. However, Sun West fails to specify what it means by “loss of staff” or 

how this apparent “loss” was connected to the operator’s failure to receive the proposed 

assessment or respond in a timely manner. This fails to adequately establish good cause for a 

failure to timely file. See E. Associated Coal, LLC, 30 FMSHRC 392, 394 & n. 2 (May 2008) 

(operators filing a motion to reopen must “provide a sufficiently detailed explanation for its 

failure to timely contest the proposed penalty assessment” and “disclose with specificity its 

grounds for relief.”); Olmos Contracting, LLC, 39 FMSHRC 2015, 2017 (Nov. 2017) (same).

The operator’s failure to allege sufficient facts is compounded by the fact that the motion 

was filed nearly one year after the proposed assessment became a final order of the Commission. 

Under Rule 60(c), a motion to reopen, regardless of its merit, is only granted if it is filed within a 

reasonable time. In the context of penalty assessments, in considering whether an operator has 

unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has 

passed between an operator’s receipt of a notification from MSHA and the operator’s filing of its 

motion to reopen. See, e.g., Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009). Once 

Sun West was made aware that it had failed to timely contest the proposed penalties, it did not 

take prompt action to try to rectify the situation. MSHA records show that the operator received 

the proposed assessment on April 8, 2021, and that it became a final order of the Commission on 

May 10, 2021. The present motion to reopen was filed on April 26, 2022—351 days later. See, 

e.g., Olmos Contracting, LLC, 39 FMSHRC at 2018 (denying a motion to reopen because the

operator had filed the motion 49 days after the proposed assessment had became a final order). 

Sun West has provided no explanation for this extreme delay. This alone is reason enough to 

deny the motion. See Highland Mining Co., 31 FMSHRC at 1316.
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Accordingly, we deny Sun West’s motion. 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

John G. Grubbs

President

Sun West Acquisition Corporation

16405 US Hwy 19

Hudson, FL 34667

ggrubbs@grubbses.com

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

Scott.Emily.T@dol.gov

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

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