**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

** **

 
| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

                        v.

 

COOPER  STONE                                             | :

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Docket  No. CENT 2023-0057

A.C.  No. 41-03401-552869

 

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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 December 13, 2022, the Commission receivedfrom Cooper Stone (“Cooper”) 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).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered to the operator on April 18,2022, and became a final order of the Commission on May 18, 2022. On December13, 2022, Cooper filed a motion to reopen, stating that its failure to timelyfile was the result of mistake or inadvertence. Cooper asserts that itsstandard practice is to file to contest proposed penalties immediately uponreceipt, however, staff illnesses during the COVID-19 pandemic impacted its abilityto meet the filing deadline.  

 

Having reviewed Cooper’s request and the Secretary’s response, we find that Cooperhas demonstrated good cause for its failure to timely file to contest. 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.[1]*See* 29 C.F.R. § 2700.28. 

 

 

 

/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:

 

MicahFlippen

Owner,Cooper Stone

1003Hemingway Drive

CollegeStation, TX 77845

micah@cooperstone.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

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[1] On April 3, 2023,the Secretary filed a petition for assessment of penalty for the captionedmatter. The issuance of the April 3, 2023 petition must have been due to anadministrative mistake on the part of the Secretary, as the uncontestedassessment become a final order of the Commission on May 18, 2022. Accordingly,the Secretary shall issue a new penalty petition pursuant to the terms of thisorder.