1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR, : Docket No. SE 2022-0204 

MINE SAFETY AND HEALTH : A.C. No. 40-03530-525097 

 ADMINISTRATION (MSHA), : 

 : Docket No. SE 2022-0205 

: A.C. No. 40-03530-528220 

: 

v. : Docket No. SE 2022-0206 

: A.C. No. 40-03530-540011 

: 

: Docket No. SE 2022-0207 

POTTER SOUTH EAST, LLC, : A.C. No. 40-03530-541838 

: 

: Docket No. SE 2022-0208 

: A.C. No. 40-03530-543535 

: 

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”).1 On September 1, 2022, Potter South East, LLC, filed a 

motion to reopen the five captioned cases which had become final orders 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 

1

 The Commission hereby consolidates these captioned matters pursuant to Commission 

Procedural Rule 12, 29 C.F.R. § 2700.12. 

March 22, 2023
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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). 

Potter filed a pro se motion to reopen the proceedings which simply states: “[t]he amount 

of the assessment penalty was a total surprise to us, as we have implemented procedures to 

prevent and correct every situation that may have resulted in a citation.” Mot. at 1. 

The Secretary of Labor filed a motion in opposition, arguing that Potter’s motion fails to

fulfill its burden to explain why it did not timely contest the penalties and to explain its delay in 

seeking reopening after receiving delinquency notices.2 In fact, the Secretary represents that

Potter only filed the motion to reopen shortly after receiving the Secretary’s scofflaw notice that 

it had an outstanding balance of $51,815.26 in unpaid penalties, interest and administrative costs. 

Sec’y Mot. at 7 (Attachment H, August 8, 2022). 

The Commission requires that, at a minimum, a motion to reopen “must provide all 

known details, including relevant dates and persons involved, and a clear explanation that 

accounts, to the best of the operator’s knowledge, for the failure to submit a timely response and 

for any delays in seeking relief once the operator became aware of the delinquency or failure.” 

2

 The Secretary of Labor represents that a total of 62 citations and penalties are at issue 

in the captioned cases. Proposed Assessment Number 000525097 (SE 2022-0204) concerns 11 

citations and became a final order on December 18, 2020. On February 2, 2021, MSHA sent 

Potter a delinquency notice for the penalties. On June 23, 2021, MSHA received payment from 

Potter which it applied to the citations at issue. 

Proposed Assessment Number 000528220 (SE 2022-0205) concerns nine citations and 

became a final order on February 18, 2021. MSHA sent Potter a delinquency notice on April 6, 

2021. 

Proposed Assessment Number 000540011 (SE 2022-0206) concerns two citations and 

became a final order on October 12, 2021. MSHA sent Potter a delinquency notice on 

November 30, 2021. 

Proposed Assessment Number 000541838 (SE 2022-0207) concerns 23 citations and 

became a final order on November 9, 2021. MSHA sent Potter a delinquency notice on 

December 28, 2021. 

Proposed Assessment Number 000543535 (SE 2022-0208) concerns 17 citations and 

became a final order of the Commission on December 7, 2021. MSHA sent Potter a delinquency 

notice on January 25, 2022. 
3

Noranda Alumina, LLC, 39 FMSHRC 441, 443 (Mar. 2017) (citing Higgins Stone Co., 32 

FMSHRC 33, 34 (Jan. 2010). 

Potter’s terse motion is deficient as it neither alleges good cause for reopening under Rule 

60(b) nor provides a factual accounting for Potter’s failure to timely contest the penalties. See,

e.g., Copenhaver Constr., Inc., 43 FMSHRC 113 (Mar. 2021) (denying a motion as “deficient on 

its face” because it did not assert a reason justifying relief pursuant to Rule 60(b)).3 

Finally, with respect to the assessments associated with Docket Nos. SE 2022-0204 and 

SE 2022-0205, the motion to reopen was filed more than one year after the final order was 

entered. Under Rule 60(c)(1) of the Federal Rules of Civil Procedure, any motion for relief 

from a final order pursuant to Rule 60(b) must be made within a reasonable time, and in the case 

of mistake, inadvertence, or excusable neglect not more than one year after the order was 

entered. See, e.g., Carmeuse Lime & Stone, 33 FMSHRC 1783, 1784 (Aug. 2011).

For all the aforementioned reasons, Potter’s motion is DENIED with prejudice. 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

3 Furthermore, it is well recognized that a movant’s good faith or lack thereof is an 

important factor in determining whether good cause exists to reopen a final order. See, e.g.,

Stone Zone, 41 FMSHRC 272, 274 (June 2019) (citations omitted). Some of the factors relevant 

to the good faith analysis are the number of delinquent penalties outstanding, the period of time 

the delinquent penalties accrued, and the seriousness of the citations underlying the 

aforementioned penalties. Kentucky Fuel Corp., 38 FMSHRC 632, 633 (Apr. 2016); see also 

Oak Grove Res. LLC, 33 FMSHRC 1130, 1132 (June 2011).
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Distribution:

Dwayne Potter

Owner

Potter South East, LLC

P.O. Box 244

Huntsville, TN 37756

pottersoutheastllc@gmail.com

Emily Toler Scott, Esq.

Counsel, Appellate Litigation

Division of Mine Safety and Health

Office of the Solicitor

U.S. Department of Labor

201 12th Street South – Suite 401 

Arlington, VA 22202-5450

Scott.Emily.T@dol.gov

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

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