1 

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 October 18, 2022, the Commission received from Eagle 

Rock, Inc. (“Eagle”) 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. 

EAGLE ROCK, INC.

:

: 

: 

: 

: 

: 

:

Docket No. WEST 2023-0012 

A.C. No. 04-04900-559854 

July 11, 2023
2 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on August 8, 2022. On 

September 7, 2022, the proposed assessment became a final order of the Commission. On 

October 12, MSHA received a partial payment of the assessment for 10 of the 14 citations listed 

on the assessment. 

Eagle asserts that it believed that its contest of the penalty assessment was due by 

September 9, 2022, two days after the assessment became a final order. The operator states that 

when it contacted MSHA’s Civil Penalty Compliance Office, it was advised that the contest was 

late, and that Eagle would receive correspondence regarding the untimeliness. On October 11, 

2022, after having failed to receive the correspondence, Eagle again contacted MSHA and 

subsequently received the letter by email. On that same date, the operator paid 10 of the 14 

proposed penalties listed on the proposed penalty assessment. The Secretary does not oppose the 

request to reopen but urges the operator to take steps to ensure that future penalty contests are 

timely filed. 

Having reviewed Eagle’s request and the Secretary’s response, we find that the delay in 

filing the penalty contest was the result of mistake, satisfying the criteria of Rule 60(b). In the 

interest of justice, we hereby reopen the penalties associated with Citation Nos. 9507582, 

9507586, 9507589, and 9507592 and remand this matter 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 
3

Distribution:

Sherrie Zappola

Office Manager

P.O. Box 1498

Weaverville, CA 96093

Eaglerockest.1980@aol.com

Larry E. Yingling

President

P.O. Box 1498

Weaverville, CA 96093

Eaglerockest.1980@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

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov