Secretary of Labor v. Prospect Mining & Development Company, LLC

Plain-English summary

Prospect Mining sent a proposed penalty assessment to outside counsel with instructions to contest it before the deadline. Counsel missed the filing while establishing a new law firm and moving offices. The operator sought reopening less than 30 days after the assessment became final, and the Secretary did not oppose. The majority found excusable neglect, reopened the assessment, and remanded it for further proceedings. Commissioner Marvit dissented because he believes the Commission has no statutory authority to reopen section 105(a) final orders.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The penalty assessment was reopened and remanded, over one Commissioner's dissent.
• Key point: A promptly filed motion and counsel's documented transition-related mistake supported excusable neglect.

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.

PROSPECT
MINING & 

DEVELOPMENT COMPANY, LLC,              

Docket
No. SE 2025-0075

A.C.
No. 01 -03419-613121

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

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 March 17, 2025, the Commission received
from Prospect Mining & Development Company, LLC, (“Prospect Mining”) 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).

On January 17, 2025, Prospect Mining
received the proposed assessment. Ex. A at 2. However, the operator did not
file to contest the penalty within 30 days and, therefore, on February 17,
2025, the assessment became a final order of the Commission.

In its motion to reopen, Prospect Mining represents
that on February 7, 2025, it sent the form to outside counsel with instructions
to contest the penalties. Counsel, however, neglected to timely file to contest
the assessment. Counsel represents that he neglected to timely file because he
was pre-occupied with establishing a new firm and moving office locations. The
Secretary does not oppose the operator’s request to reopen.

We note that the operator filed the
subject motion less than 30 days after it became a final order. The Commission
has held that “[m]otions to reopen received within 30 days of an operator’s
receipt of its first notice from MSHA that it has failed to timely file a
notice of contest will be presumptively considered as having been filed within
a reasonable amount of time.” Highland Mining Co. , 31 FMSHRC 1313,
1316-17 (Nov. 2009).

Having reviewed Prospect Mining’s motion
and the Secretary's response, we find that the operator’s failure to timely
file was the result of 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.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/
Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, dissenting:

I write to
disagree 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, however, votes to reopen the case. The Mine Act

has not granted us
authority to reconsider final orders of the Commission as I set out more fully

in Explosive
Contractors . To the contrary, it has limited our authority to do so.
Therefore, I

respectfully
dissent and would deny reopening.

/s/
Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Billy
R. Shelton, Esq.

Law
Office of Billy R. Shelton, PLLC

1795
Alysheba Way, Suite 4204

Lexington,
KY 40509

Marcus
D. Reed, 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] 

Chief
Administrative Law Judge Glynn F. Voisin

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]