1

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.

NORTHSIDE ROCK PRODUCTS LLC

:

:

:

:

:

:

:

Docket No. WEST 2022-0288

A.C. No. 35-03850-558508

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 February 20, 2023, the Commission received from 

Northside Rock Products LLC (“Northside”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the Default Order entered against it. 

On September 26, 2022, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Northside’s perceived failure to answer the Secretary of Labor’s July 27, 

2022, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on October 26, 2022, when it appeared that the operator had not filed an 

answer within 30 days.

Northside asserts that “the paperwork had been put in the wrong file,” that the operator 

had mistakenly believed that an answer had been filed, and that the mistake was not discovered 

until February 20, 2023. The Secretary opposes the request to reopen and argues that the 

operator does not explain exactly why the paperwork was placed in the wrong file or what 

procedures may have been implemented to prevent future defaults. The Secretary also notes that 

the Department of Labor’s Mine Safety and Health Administration (“MSHA”) sent Northside a 

delinquency notice on January 11, 2023.

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final 

decision of the Commission. 

August 30, 2023
2

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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be 

permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Northside’s request and the Secretary’s response, we conclude that the 

operator has failed to provide sufficient information to determine whether good cause may exist 

to reopen the final order. Northside failed to provide a sufficiently detailed explanation for its 

failure to timely file an answer, including any measures it may have implemented to prevent 

future defaults, and the reasons why the misfiling was not discovered for more than a month after 

the delinquency notice had been sent. See Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009). 

Accordingly, we deny Northside’s request to reopen without prejudice. The words “without 

prejudice” mean that Northside may submit another request to reopen the assessment.1

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

1

 In the event that Northside chooses to refile its request to reopen, it should state with 

specificity the facts and circumstances it believes would justify reopening the final order and 

should include any relevant documentation with the request.
3

Distribution:

Kim Redding

Consultant

N-Compliance Safety Services, Inc.

2949 S. Jiovanni Ave.

Meridian, ID 83642

redding1562@msn.com

Jennie Applebee

Member

P.O. Box 309

Banks, OR 97106

mlbecker@aol.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 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov