Secretary of Labor v. Hard Rock Sand and Gravel

Plain-English summary

Hard Rock Sand and Gravel did not contest proposed penalties when they arrived because it wanted to see the effect of earlier citations, then later decided it should contest. It also said it missed an email from its bookkeeper. The Commission held that changing one's mind is not a basis for Rule 60(b) relief and that the operator gave too few details about the missed email or corrective measures. It denied reopening even though the Secretary did not oppose. Commissioner Marvit concurred in denial but maintained that the Commission lacks authority to reopen section 105(a) final orders.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: A later change of strategy and an unexplained missed email do not establish extraordinary grounds for reopening.

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.

HARD
ROCK SAND AND GRAVEL

Docket
No. CENT 2025-0288

A.C.
No. 16-01553-613150

BEFORE:
Jordan,
Chair; and Baker, Commissioner

ORDER

BY: Chair Jordan
and Commissioner Baker

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 2, 2025, the Commission received from Hard
Rock Sand and Gravel (“Hard Rock”) 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicate that the proposed assessment was delivered on January 17, 2025, and
became a final order of the Commission on February 17, 2025. A delinquency
notification was mailed to the operator on April 3, 2025.

Hard Rock asserts that its failure to
timely file the notice of contest was due to it waiting to see the impact of
previous citations from June of 2024 that it had contested. According to the
operator, once it learned the outcome of those citations, it agreed that it
needed to contest the citations in question from November of 2024. Hard Rock
separately claims that it missed an email from its bookkeeper, which would have
let them know that it received the proposed assessment for November of 2024. 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.    

We
hold that the reasons Hard Rock has provided in support of its motion to reopen
are not sufficient to justify reopening. By Hard Rock’s own admission, it did
not decide to contest when the proposed penalties were received but changed its
mind after the seeing the impact of previously contested citations. Certainly,
“[a] change of mind is not adequate grounds to reopen a final judgement
pursuant to Rule 60(b).” Cold Spring Granite , 36 FMSHRC 1559, 1560 (June
2014), citing Brzeczek v. Centerior Energy , 221 F.3d 1333,
1333-34 (6th Cir. 2000). See, e.g., Ackermann v. United States , 340 U.S.
193, 198 (1950).

To the extent that the operator claims its
delay is attributable to a “missed” email from its bookkeeper, we find that the
operator failed to provide adequate justification to support reopening. In Higgins
Stone Co ., the Commission held that

[a]n operator
seeking to reopen a proceeding . . . bears the burden of establishing an
entitlement to extraordinary relief. At a minimum, the applicant for such
relief 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. The operator must
also identify which specific citations or orders in the assessment it wishes to
contest upon reopening. Affidavits from persons involved in and knowledgeable
of the situation and pertinent documents should be included with the request to
reopen.

32
FMSHRC 33, 34 (Jan. 2010). Operators must also explain in detail what steps
they have taken to ensure errors will not occur. Shelter Creek Capital, LLC ,
34 FMSHRC 3053, 3055 (Dec. 2012). Hard Rock has offered no evidence about how it
missed an email from its bookkeeper nor how it has adjusted its internal
processes to ensure timely contest of any penalties from MSHA.

Accordingly, we deny Hard Rock’s motion.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/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:                               

Ethan
Davis

Hard
Rock Sand and Gravel

P.O.
Box 648

Tylertown,
MS 39667

[email protected]

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]

Melanie
Garris

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine
Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]