**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

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

            

**ORDER**

 

BY THE COMMISSION:

                                                                                                                 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On February 10, 2023, the Commission receivedfrom Peabody Gateway North Mining, LLC (“Peabody Gateway”) a motion seeking toreopen a penalty assessment proceeding and relieve it from the Default Orderentered against it.

 

            OnNovember 9, 2022, the Chief Administrative Law Judge issued an Order to ShowCause in response to Peabody Gateway’s perceived failure to answer theSecretary of Labor’s September 8, 2022 Petition for Assessment of Civil Penalty.By its terms, the Order to Show Cause was deemed a Default Order on December 9,2022, when it appeared that the operator had not filed an answer within 30days.

 

Peabody Gateway asserts that its part-timecontractual Safety Manager acted with excusable neglect in failing to submit atimely answer to the Petition here, primarily because he was distracted and preoccupiedby the fact that his “elderly father was injured and hospitalized” during therelevant period. Peabody Decl. Ex. A. According to the operator, the part-time SafetyManager processes assessments along with the mine’s site safety manager. Thepart-time Safety Manager received the Petition for Assessment of Civil Penaltybut was on travel for an audit. Due to being distracted from his father’smedical situation, upon returning the Safety Manager inadvertently misread thePetition as an Entry of Appearance from the Secretary’s Trial Attorney whoissued the Petition. Furthermore, when he received the Commission’s Order toShow Cause and Order of Default, he asserts he inadvertently misread it becauseit contained the term “COVID-19” in the subject line. According to the SafetyManager, he “receive[s] many emails with ‘COVID-19’ in the subject line whichare informational and do not require a response and . . . [he thus] mistakenlybelieved this email to be irrelevant.” *Id*. Peabody Gateway asserts thatthe Safety Manager’s misreading of the Petition and Order to Show Cause wascontributed to by his family’s medical incident, which took some of his “attentionaway from work” and prolonged the time it took him to realize that he hadmissed these documents to file a timely Answer to the Petition. *Id*. Theoperator’s counsel filed the motion to reopen after learning of these errors. TheSecretary does not oppose the request to reopen, but notes that he may opposefuture requests to reopen penalty assessments that are not answered in a timelymanner.

 

            TheJudge’s jurisdiction in this matter terminated when the default occurred. 29C.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 fordiscretionary 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 reviewwithin 40 days of a decision’s issuance, it becomes a final decision of theCommission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here hasbecome a final decision of the Commission.  

 

            Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifying relief.*See*29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall beguided so far as practicable by the Federal Rules of Civil Procedure”); *JimWalter Res., Inc.*, 15 FMSHRC 782, 786-89 (May 1993). We have also observedthat default is a harsh remedy and that, if the defaulting party can make ashowing of good cause for a failure to timely respond, the case may be reopenedand appropriate proceedings on the merits will be permitted. *See Coal Prep.Servs., Inc.*, 17 FMSHRC 1529, 1530 (Sept. 1995). 

 

 

Having reviewedPeabody Gateway’s request and the Secretary’s response, we find that the operatoracted with excusable neglect, particularly in light of his family member’smedical situation. The operator, however, should reassessits procedures to ensure that future answers are properly filed. In the interest of justice, we hereby reopen theproceeding and vacate the Default Order. Accordingly, this case is remanded tothe Chief Administrative Law Judge for further proceedings pursuant to the MineAct and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

 

 

 

/s/ Mary Lu Jordan

MaryLu 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:

ArthurM. Wolfson, Esq.

Fisher& Phillips LLP

SixPPG Place

Suite830

Pittsburgh,PA 15222

awolfson@fisherphillips.com

 

VivianTyree, Esq.

U.S.Department of Labor

Officeof the Solicitor

230S. Dearborn St., Room 844

Chicago,IL 60604

SOL.CHI@dol.gov

 

EmeldaMedrano, Esq.

U.S.Department of Labor

Officeof the Solicitor

230S. Dearborn St., Room 844

Chicago,IL 60604

medrano.emelda@dol.gov

 

ChadBarras

PeabodyGateway North Mining

LLC,P.O. Box 369

Coulterville,IL 62237

cbarras@peabodyenergy.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov