**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)   

 

v. 

 

SOUTHWEST  ROCK PRODUCTS, INC.       |  

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Docket  No. WEST 2021-0275 

A.C.  No. 02-03338-535671 

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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 January 11, 2023, the Commission received from SouthwestRock Products, Inc. (“SW Rock”) a motion seeking to reopen a penalty assessmentproceeding and relieve it from the Default Order entered against it.  

 

OnJanuary 31, 2022, the Chief Administrative Law Judge issued an Order to ShowCause in response to SW Rock’s perceived failure to answer the Secretary ofLabor’s September 30, 2021, Petition for Assessment of Civil Penalty. By itsterms, the Order to Show Cause was deemed a Default Order on March 2, 2022,when it appeared that the operator had not filed an answer within 30 days. 

 

SWRock asserts that it did not receive documentation about the defaulted docket. TheSecretary does not oppose the request to reopen but notes that the Order toShow Cause, which incorporates the order of default, was mailed to the addresslisted on the Legal Identification Report that SW Rock filed with theDepartment of Labor’s Mine Safety and Health Administration (“MSHA”). Shestates that MSHA sent a delinquency notice to the operator on May 18, 2022,which was later forwarded to the U.S. Department of the Treasury for collectionon July 12, 2022. The Secretary notes that SW Rock’s address and contacts werenot updated until November and December 2022. The Secretary further observesthat the operator did not explain why it did not file a motion to reopen untilseveral months after receiving MSHA’s delinquency notice. 

 

 The Judge’sjurisdiction in this matter terminated when the default occurred. 29C.F.R. 

§ 2700.69(b). Under the Mine Act and theCommission’s procedural rules, relief from a Judge’s decision may be sought byfiling a petition for discretionary review within 30 days of its issuance. 30U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does notdirect review within 40 days of a decision’s issuance, it becomes a finaldecision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’sorder here has become a final decision of the Commission.

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”); *JimWalter Res., Inc.*, 15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. *See Coal Prep.Servs., Inc.*, 17 FMSHRC 1529, 1530 (Sept. 1995). 

 

Having reviewed SW Rock’s request and the Secretary’sresponse, we conclude that the operator has failed to provide sufficientinformation to determine whether good cause may exist to reopen the finalorder. We have held that a grant of relief under Rule 60(b) requires more than“general assertions or conclusory statements as to why an operator failed totimely contest.” *Atlanta Sand & Supply Co.*, 30 FMSHRC 605, 608 (July2008). However, SW Rock’s motion to reopen provided only a cursory explanationfor its failure to timely respond to the Chief Judge’s Order to Show Cause,stating that they “are unsure as to why this docket defaulted and have receivedno documentation stating such.” Moreover, SW Rock failed to provide anyexplanation regarding whether it maintained its correct legal address with MSHA– a problem that was clearly known to the company at the time the motion toreopen was filed. 

 

In consideringwhether an operator has unreasonably delayed in filing a motion to reopen, we also find relevant the amount of time thathas passed between an operator’s receipt of a delinquency notice and theoperator’s filing of its motion to reopen. *See,e.g., Left Fork Mining Co.*, 31 FMSHRC 8, 11 (Jan. 2009); *HighlandMining Co.*, 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt ofnotice of delinquency mustexplain the reasons why the operator waited to file areopening request, and lack of explanation is grounds for the Commission todeny the motion).Here, the operator only attempted to reopen the case nearly a year after theOrder was issued, after having been sent a delinquency notification and noticethat the assessment had been sent to Treasury for collection. No explanation isprovided for this lengthy delay nor for having missed multiple attempts to warnthe operator of its error. 

 

 

Accordingly, we denySW Rock’s request to reopen with prejudice. 

 

 

 

/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Palmer

WesternRegion Environmental, Health and Safety

ArcosaAggregates

39350North Schnepf Road

SanTan Valley, Arizona 85140

John.palmer@arcosa.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