**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331 PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON, DC 20004-1710**

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SECRETARY OF LABOR,                           :           Docket No. SE2022-0204

MINE SAFETY AND HEALTH                   :           A.C. No. 40-03530-525097

   ADMINISTRATION (MSHA),                  :

                                                                        :           DocketNo. SE 2022-0205

:           A.C. No. 40-03530-528220

:

v.                                             :           Docket No. SE2022-0206

:           A.C. No. 40-03530-540011

:

:           Docket No. SE 2022-0207

POTTER SOUTH EAST, LLC,                     :           A.C. No. 40-03530-541838

:

:           Docket No. SE 2022-0208

:           A.C. No. 40-03530-543535

:

 

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”).[1]On September 1, 2022, Potter South East, LLC, filed a motion to reopen the fivecaptioned cases which had become final orders 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).

 

            Potterfiled a *pro se* motion to reopen the proceedings which simply states: “[t]he amount of the assessment penalty was a totalsurprise to us, as we have implemented procedures to prevent and correct everysituation that may have resulted in a citation.”  Mot. at 1. 

 

The Secretary of Labor fileda motion in opposition, arguing that Potter’s motion fails to fulfill itsburden to explain why it did not timely contest the penalties and to explainits delay in seeking reopening after receiving delinquency notices.[2]In fact, the Secretary represents that Potter only filed the motion to reopenshortly after receiving the Secretary’s scofflaw notice that it had anoutstanding balance of $51,815.26 in unpaid penalties, interest andadministrative costs. Sec’y Mot. at 7 (Attachment H, August 8, 2022). 

 

The Commission requires that,at a minimum, a motion to reopen “must provide all known details, includingrelevant dates and persons involved, and a clear explanation that accounts, tothe best of the operator’s knowledge, for the failure to submit a timelyresponse and for any delays in seeking relief once the operator became aware ofthe delinquency or failure.” *Noranda Alumina, LLC,*39 FMSHRC 441, 443(Mar. 2017) (citing *Higgins Stone Co*., 32 FMSHRC 33, 34 (Jan. 2010). 

Potter’s terse motion is deficient as it neither alleges good causefor reopening under Rule 60(b) nor provides a factual accounting for Potter’sfailure to timely contest the penalties. *See,e.g.*,*Copenhaver Constr., Inc*.,43 FMSHRC 113 (Mar. 2021) (denying a motion as “deficient on its face” becauseit did not assert a reason justifying relief pursuant to Rule 60(b)).[3]

           Finally, with respect to the assessments associated withDocket Nos. SE 2022-0204 and SE 2022-0205, the motion to reopen was filed morethan one year after the final order was entered.  Under Rule 60(c)(1) of the Federal Rules of CivilProcedure, any motion for relief from a final order pursuant to Rule 60(b) mustbe made within a reasonable time, and in the case of mistake, inadvertence, orexcusable neglect not more than one year after the order was entered. *See,e.g.*,*Carmeuse Lime & Stone*, 33 FMSHRC 1783, 1784 (Aug. 2011).

 

            Forall the aforementioned reasons, Potter’s motion is DENIED with prejudice. 

 

 

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

 

 

 

 

/s/ William I. Althen

William I. Althen, Commissioner 

 

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner 

 

 

 

 

 

Distribution:

 

Dwayne Potter

Owner

Potter South East, LLC

P.O. Box 244

Huntsville, TN 37756

pottersoutheastllc@gmail.com

 

Emily Toler Scott, Esq.

Counsel, Appellate Litigation

Division of Mine Safety and Health

Office of the Solicitor

U.S. Department of Labor

201 12th Street South – Suite 401 

Arlington, VA 22202-5450

Scott.Emily.T@dol.gov

 

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

 

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

 

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[1] The Commission hereby consolidates these captionedmatters pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12.

[2]The Secretaryof Labor represents that a total of 62 citations and penalties are at issue inthe captioned cases. Proposed Assessment Number 000525097 (SE 2022-0204) concerns11 citations and became a final order on December 18, 2020. On February 2,2021, MSHA sent Potter a delinquency notice for the penalties. On June 23,2021, MSHA received payment from Potter which it applied to the citations atissue. 

 

Proposed Assessment Number000528220 (SE 2022-0205) concerns nine citations and became a final order onFebruary 18, 2021. MSHA sent Potter a delinquency notice on April 6, 2021. 

 

Proposed Assessment Number000540011 (SE 2022-0206) concerns two citations and became a final order onOctober 12, 2021. MSHA sent Potter a delinquency notice on November 30, 2021. 

 

Proposed Assessment Number000541838 (SE 2022-0207) concerns 23 citations and became a final order onNovember 9, 2021. MSHA sent Potter a delinquency notice on December 28, 2021.  

 

Proposed Assessment Number000543535 (SE 2022-0208) concerns 17 citations and became a final order of theCommission on December 7, 2021. MSHA sent Potter a delinquency notice on January25, 2022.   

[3] Furthermore, it is well recognized that a movant’sgood faith or lack thereof is an important factor in determining whether goodcause exists to reopen a final order. *See, e.g.*,*Stone Zone*, 41FMSHRC 272, 274 (June 2019) (citations omitted). Some of the factors relevantto the good faith analysis are the number of delinquent penalties outstanding,the period of time the delinquent penalties accrued, and the seriousness of thecitations underlying the aforementioned penalties. *Kentucky Fuel Corp*.,38 FMSHRC 632, 633 (Apr. 2016); *see also Oak Grove Res. LLC*, 33 FMSHRC1130, 1132 (June 2011).