Secretary of Labor v. Ohio County Coal Resources, Inc.

Plain-English summary

A temporary problem with MSHA's mail provider interrupted Ohio County Coal Resources' receipt of proposed assessments for several months. When delivery resumed, a larger-than-normal batch increased the safety director's workload, and the operator paid some penalties but failed to send the contest form for this assessment. It moved to reopen soon after a delinquency notice revealed the error, 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 lacks authority to reopen a section 105(a) final order.

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 documented delivery disruption, resulting backlog, and prompt corrective filing 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.

OHIO
COUNTY COAL RESOURCES,  

INC.,            

Docket
No. WEVA 2025-0220

A.C.
No. 46-01436-604839

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 February 21, 2025, the Commission received
from Ohio County Coal Resources, Inc., (“Ohio County”) 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).

In its motion to reopen, Ohio County
represents that on October 20, 2024, it received the subject proposed
assessment for civil penalties from the Secretary of Labor’s Mine Safety and
Health Administration (“MSHA”). Ohio County neglected to timely file the
contest form, and it became a final order of the Commission on November 20,
2024.

Ohio County alleges that a temporary
interruption in the delivery of MSHA proposed assessments, as a result of a
problem with MSHA’s mail service provider, contributed to Ohio County’s failure
to timely file to contest the assessment at issue. Ohio County represents that
proposed assessments were not delivered to the operator in July, August and
September 2024. Ex. 1 at 2 (Affidavit of Safety Director Matthew Cunningham). When
delivery resumed, the operator received a greater volume of proposed
assessments than normal, adding to the Safety Director’s workload. Upon receipt
of the subject proposed assessment, Ohio County decided which penalties to pay
and which to contest. Timely payment was made. However, the operator neglected
to timely file the contest form. Mr. Cunningham became aware of the failure to
timely file after receiving a delinquency notice from MSHA. Ohio County filed a
motion to reopen soon after discovering the delinquency. The Secretary filed a
response indicating that she did not oppose the operator’s request.    

Having reviewed Ohio County’s motion and
the Secretary's response, we find that the operator’s failure to timely file
was the result of excusable neglect. See e.g., MDI Mining , 47 FMSHRC __,
No. WEST 2025-0154 (July 1, 2025) (where the delay in mailing of the proposed
assessment contributed to the operator’s confusion). 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:

Christopher
D. Pence, Esq.

Pence
Law Firm PLLC

10
Hale St., 4 th Floor

Charleson,
WV 25301

[email protected]

Emily
O. Roberts, 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]