**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.

 

MILLER  CONTRACTING SERVICES, 

  LLC                                          | :

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Docket  No. CENT 2022-0253

A.C.  No. 13-00032-559242

 

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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 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).

 

            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. 

 

 

 

/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:

 

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

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[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.