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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 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 May 16, 2023, the Commission received from Mulberry 

Limestone Quarry, Co.. Inc. (“Mulberry”) 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. 

MULBERRY LIMESTONE QUARRY 

 CO., INC

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: 

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Docket No. CENT 2023-0190 

A.C. No. 23-02543-570964 

September 20, 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 on February 13, 2023 and 

became a final order of the Commission on March 15, 2023. MSHA received partial payment of 

the assessment on March 14, 2023, a day before the assessment became a final order of the 

Commission. A delinquency notification was mailed to the operator on May 1, 2023, and 

delivered on May 8, 2023. The Secretary does not oppose the request to reopen.

Payments for uncontested citations must be mailed to MSHA’s Lock Box in St. Louis, 

Missouri. However, contests of proposed assessments must be mailed to a different MSHA 

address in Arlington, Virginia. On March 10, 2023, Mulberry correctly mailed its payment of 

the uncontested citations to St. Louis. However, Mulberry mistakenly mailed its contest along 

with its payment to the St. Louis address.

1

 Mulberry did not become aware of its failure to 

timely contest the assessment until it received a delinquency notice on May 8, 2023. Upon 

receiving the delinquency notice, Mulberry promptly contacted MSHA, who informed them of 

their mistake.

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 May 16, 2023, within 30 

days of the receipt of the delinquency notification on May 8, 2023. Therefore, the motion to 

reopen was filed within a reasonable amount of time.

1 In its motion to reopen, Mulberry implies that the same envelope which contained the 

check for the uncontested citations also included the form indicating that Mulberry wished to 

contest a portion of the assessment. Mulberry also asserts that MSHA was able to locate the 

contest of the assessment, but determined that the contest had been received at the St. Louis, 

Missouri address. 
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Having reviewed Mulberry’s request and the Secretary’s response, we find that Mulberry

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 

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Matt Blessant

Tammy Wyland

Mulberry Limestone Quarry Co., Inc.

1608 W. 4th Street

Pittsburg, KS 66762

mulberrylimestonequarry@gmail.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