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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 21, 2022, the Commission received from Vulcan 

Electrical Services (“Vulcan”) 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.

VULCAN ELECTRICAL SERVICES

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Docket No. SE 2023-0014

A.C. No. 38-00010-561545

July 11, 2023
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Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on August 29, 2022, and became 

a final order of the Commission on September 28, 2022. 

Vulcan explains that a new administrative assistant received the proposed penalty 

assessment but did not understand the significance of the timing for filing a contest. 

Consequently, the assistant did not forward the proposed penalty assessment to the Director of 

Safety until October 20, 2022. Vulcan provided training regarding the 30-day contest period to 

the administrative assistant to ensure that future contests are timely. The operator filed the 

motion to reopen one day after the error was discovered. 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 in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s 

procedural rules. 

Having reviewed Vulcan’s request and the Secretary’s response, and in light of the 

operator’s prompt filing of a motion to reopen and the operator’s actions to correct the issue, we 

find that the delay in filing the penalty contest was the result of inadvertence and excusable 

neglect. In the interest of justice, we hereby reopen this matter 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:

William K. Doran, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street, N.W., Suite 1000

Washington, D.C. 20006

william.doran@ogletreedeakins.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