**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

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SUN WEST  ACQUISITION CORPORATION                                             | :

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Docket  No. SE 2022-0100

A.C.  No. 08-00729-532107 |
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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).

 

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.

 

 

 

Accordingly, we deny Sun West’s motion.    

 

 

 

 

/s/ Mary Lu Jordan

MaryLu Jordan, Chair

 

 

 

 

/s/William I. Althen

WilliamI. Althen, Commissioner 

 

 

/s/Marco M. Rajkovich, Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

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