Secretary of Labor v. Leroy's Excavating, Inc.

Plain-English summary

Leroy's Excavating defaulted after its attorney did not answer the Secretary's penalty petition or the Commission's order to show cause. The company later asserted that neither it nor its attorney received the show-cause order. Commission records showed that the order was sent to the company's designated attorney, and the reopening motion included no affidavit or detailed explanation from counsel. The Commission held that a bare assertion of non-receipt did not establish good cause. It denied the motion to reopen.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The motion to reopen the default order was denied.
• Key point: A represented operator must provide evidence and a detailed explanation from counsel, not merely assert that a properly addressed order was not received.

Full text (FMSHRC public release)

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.
LEROY’S EXCAVATING, INC., |
|
|
Docket No. CENT 2025-0031 A.C. No. 29-02500-602275
|

BEFORE: Rajkovich, Chair; Jordan, Baker, and Marvit, Commissioners

ORDER

BY: Rajkovich, Chair; Jordan, and Baker, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2024) (“Mine Act”). On June 23, 2025, the Commission received a motion from Leroy’s Excavating, Inc., (“Leroy”) seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On February 18, 2025, the Chief
Administrative Law Judge issued an Order to Show Cause in response to Leroy’s
perceived failure to answer the Secretary of Labor’s December 16, 2024 Petition
for Assessment of Civil Penalty. By its terms, the Order to Show Cause
was deemed a Default Order on March 21, 2025, when it
appeared that the operator had not filed an answer within 30 days.

Leroy’s Excavating asserts neither it nor its attorney received the Commission’s Order to Show Cause. The Secretary of Labor opposes the motion, arguing that the Order was properly issued to the operator’s attorney. According to the Secretary, a copy of the underlying petition and a notice of appearance were also sent to the operator’s counsel. Counsel did not respond to any of these filings.

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.

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).

The President of Leroy’s Excavating represents
that neither the operator nor its counsel received the Commission’s Order. The Commission
sent the Order to Show Cause to the operator’s designated attorney. The operator’s
motion contains no explanation for its attorney’s failure to respond. For
instance, there is no affidavit attesting to his non-receipt of the
Commission’s Order. We conclude that in the absence of a sufficient explanation
from its counsel, the operator has not demonstrated good cause for its failure
to timely respond. See Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010)
(requiring that “[a]t a minimum, the applicant 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.”). Simply stating that the Order was not received is not sufficient.
See Southwest Rock Prods., Inc., 45 FMSHRC 747, 748 (Aug. 2023) (“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”'). Therefore,
the motion is denied.

Having reviewed the operator’s request and the Secretary’s response, we conclude that the operator has failed to establish good cause for a failure to timely file a response to the Commission’s Order to Show Cause. The motion is denied.

/s/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, concurring:

I write to agree with the Majority in this case for the reasons set forth below.

In Explosive
Contractors, 46 FMSHRC 965 (Dec. 2024), I dissented and explained that
Congress did not grant the Commission the authority to reopen final orders
under section 105(a) of the Mine Act. The Commission’s repeated invocation of
Federal Rule of Civil Procedure 60(b) cannot overcome the statutory language.
However, in Belt Tech, I explained in my concurrence that “the Act
clearly states that to become a final order of the Commission, the operator
must have received the notification from the Secretary.” 46 FMSHRC 975 (citing Hancock
Materials, Inc., 31 FMSHRC 537 (May 2009)). Taken together, these opinions
stand for the proposition that the Commission may not reopen final orders under
its statutory grant, but an operator may proceed if it has not properly
received a proposed order.

In the instant case, as the Majority recounts, the Commission’s order became final under the language of section 105(a). The Majority denies reopening in its opinion because the operator has not alleged good cause or provided a factual accounting for its failure to timely contest the penalties. Though I believe the Commission lacks the authority to consider motions to reopen, I concur with the Majority in denying reopening in this matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Dale T. Salazar, President

Leroy’s Excavating Inc.

2 Private Drive

1529 Hernandez, NM 87537

[email protected]

David Dotson, Esq.

Leroy’s Excavating, Inc.

[email protected]

Alexandra J. Gilewicz, Esq.

Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

[email protected]

Melanie Garris

US Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting Chief Administrative Law Judge Michael G. Young

Office of the Chief Administrative Law Judge

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]