1 

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: Jordan, Chair; Althen and Rajkovich, Commissioners 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act”). On September 9, 2022, the Commission received from Sterling 

Materials (“Sterling”) a motion to reopen final orders of the Commission pursuant to section 

105(a) of the 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. 

STERLING MATERIALS

:

 : 

 : 

 : 

 : 

 : 

:

Docket No. KENT 2022-0127 

A.C. No. 15-18068-548406 

June 8, 2023
2 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered to the operator on January 24, 

2022 and became a final order of the Commission on February 23, 2022. Thereafter, MSHA 

received partial payment of the civil penalties. On April 12, 2022, MSHA sent the operator a 

delinquency notice. The operator then sent additional payments in satisfaction of the total 

assessed penalty for the six citations at issue in the assessment. 

Sterling asserts that it intended to contest the civil penalty associated with Citation No. 

9870856, but failed to timely file contest as a result of a clerical error. Sterling maintains that it 

confused the status of Citation No. 9870856 with the status of a similarly numbered citation 

(Citation No. 9870855). Sterling had previously timely filed to contest the proposed penalty for 

the similarly numbered citation.1

 The Secretary does not oppose the operator’s motion to 

reopen. 

 Having reviewed Sterling’s request and the Secretary’s response, we find that Sterling

demonstrated that its failure to timely file to contest the proposed penalty for Citation No. 

9870856 was due to a mistake and clerical error. In the interest of justice, we hereby reopen the 

contest of 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. 

_________________________________ 

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner 

1 Sterling’s motion mistakenly states that Citation No. 9870855 was part of Docket No. 

KENT 2021-0129. In fact, Citation No. 9870855 was contained in Docket No. KENT 2021-

0130. 
3

Commissioner Baker, dissenting:

In this case, Sterling Materials failed to timely contest a proposed penalty and then paid 

the amount owed. For the reasons set forth in my dissent in Omya Inc., 45 FMSHRC___, 2023 

WL 2559811 (Mar. 9, 2023), I do not believe it is accurate to characterize this action as a 

justifiable mistake or excusable neglect. 

Therefore, I would deny its motion to reopen.

_________________________________ 

Timothy J. Baker, Commissioner 
4

Distribution:

Adele L. Abrams, Esq., CMSP

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

safetylawyer@gmail.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