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 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 December 22, 2021, the Commission received from 

Dragon Products Company, LLC (“Dragon”) 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.

DRAGON PRODUCTS COMPANY, LLC

:

:

:

:

:

:

:

Docket No. YORK 2022-0016

A.C. No. 17-00022-539342

April 17, 2023
2

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

(“MSHA”) indicate that the proposed assessment was delivered on August 11, 2021, and became 

a final order of the Commission on September 10, 2021. On September 22, 2021, MSHA 

received partial payment of the assessment. On November 23, 2021, a delinquency notification 

was mailed to the operator.

Dragon asserts that its contest of the assessment was timely mailed through certified mail, 

return receipt requested. However, MSHA did not have a record of receiving the contest of the 

assessment. Subsequently, Dragon tried to check with the postal service on the status of the 

contest but was informed that the tracking number for the package which contained its contest 

had expired. Dragon believes the postal service failed to properly deliver its contest. 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. 

In addition, we note that the motion to reopen was timely filed. The Commission has 

previously held that “[m]otions to reopen received within 30 days of an operator’s receipt of its 

first notice from MSHA that it has failed to timely file a notice of contest will be presumptively 

considered as having been filed within a reasonable amount of time.” Highland Mining Co., 31 

FMSHRC 1313, 1316-17 (Nov. 2009). Here, the motion to reopen was filed on December 22, 

2021, within 30 days of the operator’s receipt of the delinquency notification, mailed on 

November 23. 

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

acted in good faith. We note that the Secretary does not dispute Dragon’s assertion that the 

operator timely mailed its contest of the assessment. Dragon took precautions in sending the 

contest of the assessment by certified mail, return receipt requested, and tried to provide tracking 

information for its contest of the assessment. Dragon also timely filed its request to reopen. 
3

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 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 
4

Distribution:

C. Gregory Ruffennach

Attorney-at-Law

1629 K Street, N.W., STE 300

Washington, DC 20036

greg@ruffennachlaw.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