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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: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On February 22, 2023, the Commission received from 

Rockwell Mining, LLC (“Rockwell”) two motions seeking to reopen penalty assessments

that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 

30 U.S.C. § 815(a).1

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 

1 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEVA 2023-0197 and WEVA 2023-0198 because they involve similar factual 

and procedural issues. 29 C.F.R. § 2700.12.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) 

v.

ROCKWELL MINING, LLC

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Docket No. WEVA 2023-0197

A.C. No. 46-09377-566429

Docket No. WEVA 2023-0198

A.C. No. 46-09427-566430

August 21, 2023
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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 the proposed assessments were delivered to the operator via U.S. Postal 

Service on November 16, 2022. On December 16, 2022, the proposed assessments were deemed 

final orders of the Commission because the operator had not filed Notices of Contest within 30 

days. On January 31, 2023, MSHA mailed delinquency notices to the operator. 

Rockwell asserts that it learned of the assessments on February 6, 2023, during an inquiry 

into its penalty balance. At that time, MSHA informed Rockwell that the assessments had been 

delivered on November 16, 2022 and that the signature block on the delivery confirmation read 

“C COVID.” Rockwell claims no employee received the assessments on November 16, 2022. 

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 February 22, 2023, 

approximately two weeks after the conversation with MSHA and approximately three weeks 

after the delinquency notices were received. Therefore, the motion was filed within a reasonable 

amount of time.

Having reviewed Rockwell’s requests and the Secretary’s responses, we find that the 

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

timely filing its request to reopen.2 We also note the use of “C COVID” in the signature block, 

and recognize that mail delivery was affected by the unprecedented strain of the COVID-19 

pandemic during the relevant timeframe. In the interest of justice, we hereby reopen these 

matters and remand them 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. 

2 In a June 29, 2023 Order in Docket No. WEVA 2022-0467 et al., Rockwell was put on 

notice that any future motions to reopen would be closely scrutinized for signs of an inadequate 

internal processing system. This motion was filed prior to that notice. Furthermore, the record 

does not indicate whether the mistake in this instance was with the U.S. Postal Service’s delivery 

and confirmation process, Rockwell’s receipt process, or simply a fluke. Nevertheless, we 

reiterate that any future requests to reopen which indicate a failure of Rockwell’s internal 

processing system and fail to describe good faith measures to improve that system may be 

denied. 
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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:

Justin K. Chandler, Esq.

Steptoe & Johnson PLLC

707 Virginia Street East, 17th Floor

PO Box 1588

Charleston, WV 25326-1588

Justin.chandler@steptoe-johnson.com

Jonathan R. Ellis, Esq.

Steptoe & Johnson PLLC

707 Virginia Street East, 17th Floor

PO Box 1588

Charleston, WV 25326-1588

Jonathan.ellis@steptoe-johnson.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

Office of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov