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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. 

SOUTHWEST ROCK PRODUCTS, INC.

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Docket No. WEST 2021-0275 

A.C. No. 02-03338-535671 

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 January 11, 2023, the Commission received from 

Southwest Rock Products, Inc. (“SW Rock”) a motion seeking to reopen a penalty assessment 

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

On January 31, 2022, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to SW Rock’s perceived failure to answer the Secretary of Labor’s September 

30, 2021, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on March 2, 2022, when it appeared that the operator had not filed an 

answer within 30 days.

SW Rock asserts that it did not receive documentation about the defaulted docket. The 

Secretary does not oppose the request to reopen but notes that the Order to Show Cause, which 

incorporates the order of default, was mailed to the address listed on the Legal Identification 

Report that SW Rock filed with the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”). She states that MSHA sent a delinquency notice to the operator on 

May 18, 2022, which was later forwarded to the U.S. Department of the Treasury for collection 

on July 12, 2022. The Secretary notes that SW Rock’s address and contacts were not updated 

until November and December 2022. The Secretary further observes that the operator did not 

explain why it did not file a motion to reopen until several months after receiving MSHA’s 

delinquency notice. 

 

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 

August 30, 2023
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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. 

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 SW Rock’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. We have held that a grant of relief under Rule 60(b) requires more than 

“general assertions or conclusory statements as to why an operator failed to timely contest.” 

Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 (July 2008). However, SW Rock’s motion to 

reopen provided only a cursory explanation for its failure to timely respond to the Chief Judge’s 

Order to Show Cause, stating that they “are unsure as to why this docket defaulted and have 

received no documentation stating such.” Moreover, SW Rock failed to provide any explanation 

regarding whether it maintained its correct legal address with MSHA – a problem that was 

clearly known to the company at the time the motion to reopen was filed. 

In considering whether an operator has unreasonably delayed in filing a motion to reopen, 

we also find relevant the amount of time that has passed between an operator’s receipt of a 

delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining 

Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 

2009) (holding that motions to reopen filed more than 30 days after receipt of notice of 

delinquency must explain the reasons why the operator waited to file a reopening request, and 

lack of explanation is grounds for the Commission to deny the motion). Here, the operator only 

attempted to reopen the case nearly a year after the Order was issued, after having been sent a 

delinquency notification and notice that the assessment had been sent to Treasury for collection. 

No explanation is provided for this lengthy delay nor for having missed multiple attempts to 

warn the operator of its error. 
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Accordingly, we deny SW Rock’s request to reopen with prejudice.

_________________________________

Mary Lu Jordan, Chair

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William I. Althen, Commissioner 

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Marco M. Rajkovich, Jr., Commissioner

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Timothy J. Baker, Commissioner 
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Distribution:

John Palmer

Western Region Environmental, Health and Safety

Arcosa Aggregates

39350 North Schnepf Road

San Tan Valley, Arizona 85140

John.palmer@arcosa.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