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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: Jordan, Chair; Althen and Rajkovich, Commissioners: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On September 21, 2021, the Commission received from 

Cemex Construction Materials South, LLC (“Cemex”) 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. 

CEMEX CONSTRUCTION MATERIALS 

 SOUTH, LLC

:

: 

: 

: 

: 

: 

: 

:

Docket No. CENT 2021-0207 

A.C. No. 41-04827-536222 

June 21, 2023
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MSHA records indicate that the proposed assessment was mailed via the USPS to the 

operator on June 8, 2021. USPS recorded the date of delivery as June 16, 2021. On July 16, 

2021, the proposed assessment was deemed a final order of the Commission because the operator 

had not filed a Notice of Contest within 30 days. On August 31, 2021, MSHA mailed a 

delinquency notice to the operator. 

Cemex does not dispute that the assessment was mailed to the correct address. However, 

Cemex has no record of receiving the assessment. The Secretary has provided a delivery 

confirmation, which contains “COVID” in the signature block. The exact method of delivery 

confirmation is unclear. The Secretary of Labor does not oppose the request to reopen. 

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 September 21, 2021, 

within 30 days of the operator’s receipt of the delinquency notification, mailed on August 31, 

2021. Therefore, the motion to reopen was filed within a reasonable amount of time.

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

demonstrated good cause for its failure to timely respond and acted in good faith by timely filing 

its request to reopen. 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 
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Commissioner Baker, dissenting: 

I respectfully dissent. 

In the past, the Commission has held that where a failure to contest a proposed 

assessment results from an inadequate or unreliable internal processing system, the operator has 

not established grounds for reopening the assessment. See, e.g., Shelter Creek Capital, LLC, 34 

FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); 

Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010). 

As set forth in the majority opinion, the Secretary provided USPS documentation 

showing Cemex received its proposed assessment on June 16, 2021. On July 16, 2021, the 

proposed assessment was deemed a final order of the Commission. Following receipt of a 

delinquency notice, Cemex filed a Motion to Reopen. It concedes that the proposed assessment 

was delivered to the correct address but alleges that it has no record of the delivery. In short, 

after delivery the assessment was not routed to the person at Cemex responsible for its 

processing. Cemex provides no explanation for this failure. 

Commission Procedural Rule 25, 29 C.F.R. § 2700.25, provides that “[t]he Secretary, by 

certified mail, shall notify the operator or any other person against whom a penalty is proposed 

of the violation alleged, the amount of the proposed penalty assessment, and that such person 

shall have 30 days to notify the Secretary that he wishes to contest the proposed penalty 

assessment.” 

The USPS receipts show Cemex, as an entity, received the assessments. Therefore, the 

Secretary delivered the assessments as required pursuant to Commission Procedural Rule 25. 

Once Cemex received the assessment, it was responsible for ensuring that it was reviewed by the 

appropriate personnel and processed in a timely manner. Its failure to do so demonstrates an 

inadequate or unreliable internal processing system. 

Therefore, I would find that Cemex failed to establish good cause and deny Cemex’s

motion to reopen. 

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Michael T. Cimino, Esq.

Jackson Kelly PLLC

P.O. Box 553

Charleston, WV 25322

mcimino@jacksonkelly.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

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov