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

et seq. (2018) (“Mine Act”). On September 26, 2022, the Commission received from Miller 

Contracting Services, LLC (“Miller”), a motion to reopen a final order 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. 

MILLER CONTRACTING SERVICES, 

 LLC

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Docket No. CENT 2022-0253 

A.C. No. 13-00032-559242 

June 7, 2023
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 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered to the operator on July 26, 2022, 

and became a final order of the Commission on August 25, 2022. Miller filed a short pro se

motion to reopen stating that it timely filed to contest the penalty for Citation No. 9488618 and 

attributing MSHA’s non-reciept of the contest to the form becoming lost in the mail. MSHA

states that it received a partial payment toward the penalty on August 25, 2023. 

We note that although Miller’s motion lacks details and documentation regarding the 

operator’s attempt to timely file, Miller promptly filed to reopen shortly after learning that 

MSHA did not receive its contest form. Specifically, Miller filed its motion 32 days after the 

citation became a final order of the Commission. The Secretary does not oppose the operator’s 

request.1

 

Having reviewed Millers’s request and the Secretary’s response, we find that Miller has 

demonstrated that its failure to timely file was the result of a mistake. 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 

1 The Secretary represents that the operator timely contested the imminent-danger order 

that was issued in association with Citation No. 9488618. The parties further represent that they 

have reached a settlement agreement involving the imminent-danger order and the citation. 
3

Distribution:

Ray Boon

HR/Safety Manager

Miller Contracting Services, LLC

5905 Walnut Grove Road

Carrier Mills, IL 62917

ray@millercontracting.us

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