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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.

LEESVILLE LAND LLC

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Docket No. LAKE 2024-0051

A.C. No. 33-00968-560122

Docket No. LAKE 2024-0052

A.C. No. 33-00968-570892

Docket No. LAKE 2024-0053

A.C. No. 33-00968-570975

Docket No. LAKE 2024-0054

A.C. No. 33-00968-571806

Docket No. LAKE 2024-0055

A.C. No. 33-00968-572422

Docket No. LAKE 2024-0056

A.C. No. 33-00968-574067

Docket No. LAKE 2024-0057

A.C. No. 33-00968-576146

Docket No. LAKE 2024-0058

A.C. No. 33-00968-580230

Docket No. LAKE 2024-0059

A.C. No. 33-00968-582187

Docket No. LAKE 2024-0060

A.C. No. 33-00968-585210

February 21, 2024
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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 November 22, 2023, the Commission received from 

Leesville Land LLC (“Leesville”) a motion seeking to reopen ten 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 

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 in Docket No. LAKE 2024-0051 was delivered 

to the operator on August 16, 2022, and became a final order of the Commission on September 

15, 2022. The proposed assessment in Docket No. LAKE 2024-0052 was delivered to the 

operator on February 7, 2023, and became a final order of the Commission on March 9, 2023. 

The proposed assessment in Docket No. LAKE 2024-0053 was delivered to the operator on 

February 15, 2023, and became a final order of the Commission on March 17, 2023. The 

proposed assessment in Docket No. LAKE 2024-0054 was delivered to the operator on February 

28, 2023, and became a final order of the Commission on March 30, 2023. The proposed 

assessment in Docket No. LAKE 2024-0055 was delivered to the operator on March 15, 2023, 

and became a final order of the Commission on April 14, 2023. The proposed assessment in 

Docket No. LAKE 2024-0056 was delivered to the operator on April 10, 2023, and became a 

final order of the Commission on May 10, 2023. The proposed assessment in Docket No. LAKE 

1

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

these matters because they involve similar factual and procedural issues. 29 C.F.R. § 2700.12. 
3 

2024-0057 was delivered to the operator on May 18, 2023, and became a final order of the 

Commission on June 19, 2023. The proposed assessment in Docket No. LAKE 2024-0058 was 

delivered to the operator on July 11, 2023, and became a final order of the Commission on 

August 10, 2023. The proposed assessment in Docket No. LAKE 2024-0059 was delivered to 

the operator on August 18, 2023, and became a final order of the Commission on September 18, 

2023. The Secretary’s records do not specify the final order date for Docket No. LAKE 2024-

0060. However, the statement date for the proposed assessment in this case was September 13, 

2023. 

Leesville asserts that its former Safety Director had limited experience with contesting 

citations, failed to understand the assessment process, and did not timely contest assessments. 

Mine management received a notice from MSHA that the mine’s enforcement history “was 

trending in the wrong direction and could lead to a Pattern of Violations consideration.” 

Operator’s Affidavit at 3. On November 1, 2023, Leesville hired a new experienced safety 

director to handle proposed assessments and mine safety and health-related duties. Upon 

assuming the position, the new safety director discovered numerous failures by his predecessor

and promptly took steps to file motions to reopen and implement new procedures for ensuring 

proposed assessments are timely evaluated and contested. The operator claims to be resolving 

outstanding delinquencies and working with MSHA to improve mine safety and health 

conditions. They claim the new Safety Director has made significant improvements and seeks

reopening to contest a discrete number of citations. In view of Leesville’s changes and 

willingness to work with MSHA, the Secretary does not oppose the motion to reopen. 

In Docket No. LAKE 2024-0051, the motion to reopen was filed more than one year after 

becoming a final order. Under Federal Rule of Procedure 60(c), motions to reopen alleging 

mistake, inadvertence or excusable neglect must be made no more than a year after entry of the 

final order. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). Therefore, Leeville’s 

motion as to this case is untimely and is denied with prejudice. 

In the remaining cases, having reviewed Leesville’s request and the Secretary’s response,

we find that the failure to contest was the result of a single employee failing to understand the 

contest procedures. Leesville’s prompt action upon discovering the issue and willingness to hire 

additional support to work with MSHA constitute a basis for reopening. Vulcan Electrical Servs., 

45 FMSHRC 597, 98 (July 11, 2023) (reopening when an employee did not understand the 

significance of the timing for filing a contest and the operator took prompt action to correct the 

issue). 
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In the interest of justice, we hereby reopen these matters 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:

Christopher D. Pence, Esq.

Pence Law Firm, PLLC

10 Hale Street, 4th Floor

Charleston, WV 25301

cpence@pencefirm.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