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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: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On July 19, 2022, the Commission received from R.E. 

Pierson Materials Corp. (“R.E. Pierson”) two motions seeking to reopen penalty assessments that 

had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a).1

 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 

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 The operator submitted its motion to reopen in PENN 2022-0105 in response to the 

Commission’s August 31, 2023 Order to Show Cause. For the limited purpose of addressing 

these motions to reopen, we hereby consolidate docket numbers PENN 2022-0105 and PENN 

2022-0106 because they involve similar factual and procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

R.E. PIERSON MATERIALS CORP.

:

: 

: 

: 

: 

: 

:

Docket No. PENN 2022-0105 

A.C. No. 36-00111-552721 

Docket No. PENN 2022-0106 

A.C. No. 36-07480-551092 

September 22, 2023
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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 for PENN 2022-0105 was delivered on April

13, 2022, and became a final order of the Commission on May 13, 2022. MSHA also issued a 

delinquency notice to the operator on June 28, 2022. Regarding PENN 2022-0106, MSHA 

records indicate that the proposed assessment was delivered on March 18, 2022, and became a 

final order of the Commission on April 18, 2022. MSHA issued a delinquency notice on June 2, 

2022. 

R.E. Pierson admits that it received the proposed assessments at issue. However, it 

asserts that the mine’s administrative staff failed to forward the proposed assessments to the 

Mine Operations Manager for review and processing, due to clerical errors in processing the 

mail. According to R.E. Pierson’s Mine Operations Manager, the operator discovered the errors 

only after receiving MSHA’s delinquency notices. The operator then contacted its outside 

counsel to submit the motions to reopen. R.E. Pierson also asserts that it has taken corrective 

measures to prevent any future occurrence of this error. The Secretary does not oppose the 

requests to reopen, but urges the operator to take steps to ensure that future penalty contests are 

timely filed. 

 
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Having reviewed R.E. Pierson’s requests and the Secretary’s responses, we find that the 

operator inadvertently failed to forward the contest forms to the mine’s management. In the 

interest of justice, we hereby reopen these matters and remand them 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 

_________________________________ 

Timothy J. Baker, Commissioner 
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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