Secretary of Labor v. Southwest Rock Products, Inc.

Plain-English summary

Southwest Rock Products asked the Commission to reopen a penalty assessment that became final after the company did not answer the Secretary's petition or a show-cause order. The company said it was unsure why the case defaulted and had received no documentation. The Secretary did not oppose reopening, but noted that the show-cause order went to the address on the company's MSHA filing and that later delinquency and Treasury collection notices were sent. The Commission found that the company did not adequately explain its failure to respond, its outdated contact information, or its lengthy delay in seeking relief. It denied the request to reopen with prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: The request to reopen the defaulted penalty proceeding was denied with prejudice.
• Key point: A reopening request needs specific facts showing good cause and must explain any delay after delinquency or collection notices.

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. 

SOUTHWEST
ROCK PRODUCTS, INC. 

: 

: 

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Docket
No. WEST 2021-0275 

A.C.
No. 02-03338-535671 

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 January 11, 2023, the Commission received from Southwest
Rock Products, Inc. (“SW Rock”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it. 

On
January 31, 2022, the Chief Administrative Law Judge issued an Order to Show
Cause in response to SW Rock’s perceived failure to answer the Secretary of
Labor’s September 30, 2021, Petition for Assessment of Civil Penalty. By its
terms, the Order to Show Cause was deemed a Default Order on March 2, 2022,
when it appeared that the operator had not filed an answer within 30 days.     

SW
Rock asserts that it did not receive documentation about the defaulted docket. The
Secretary does not oppose the request to reopen but notes that the Order to
Show Cause, which incorporates the order of default, was mailed to the address
listed on the Legal Identification Report that SW Rock filed with the
Department of Labor’s Mine Safety and Health Administration (“MSHA”). She
states that MSHA sent a delinquency notice to the operator on May 18, 2022,
which was later forwarded to the U.S. Department of the Treasury for collection
on July 12, 2022. The Secretary notes that SW Rock’s address and contacts were
not updated until November and December 2022. The Secretary further observes
that the operator did not explain why it did not file a motion to reopen until
several months after receiving MSHA’s delinquency notice.

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).

Having reviewed SW Rock’s request and the Secretary’s
response, we conclude that the operator has failed to provide sufficient
information to determine whether good cause may exist to reopen the final
order. We have held that 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.” Atlanta Sand & Supply Co. , 30 FMSHRC 605, 608 (July
2008). However, SW Rock’s motion to reopen provided only a cursory explanation
for its failure to timely respond to the Chief Judge’s Order to Show Cause,
stating that they “are unsure as to why this docket defaulted and have received
no documentation stating such.” Moreover, SW Rock failed to provide any
explanation regarding whether it maintained its correct legal address with MSHA
– a problem that was clearly known to the company at the time the motion to
reopen was filed.

In considering
whether an operator has unreasonably delayed in filing a motion to reopen , we also find relevant the amount of time that
has passed between an operator’s receipt of a delinquency notice and the
operator’s filing of its motion to reopen . See,
e.g., Left Fork Mining Co. , 31 FMSHRC 8, 11 (Jan. 2009); Highland
Mining Co. , 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of
notice of delinquency must explain the reasons why the operator waited to file a
reopening request, and lack of explanation is grounds for the Commission to
deny the motion).
Here, the operator only attempted to reopen the case nearly a year after the
Order was issued, after having been sent a delinquency notification and notice
that the assessment had been sent to Treasury for collection. No explanation is
provided for this lengthy delay nor for having missed multiple attempts to warn
the operator of its error.

Accordingly, we deny
SW Rock’s request to reopen 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: 

John
Palmer

Western
Region Environmental, Health and Safety

Arcosa
Aggregates

39350
North Schnepf Road

San
Tan Valley, Arizona 85140

[email protected]

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 

[email protected] 

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 

[email protected] 

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[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]