**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

                        v.

 

PEABODY  GATEWAY NORTH  

  MINING,  LLC                                                | :

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Docket  No. LAKE 2022-0215

A.C.  No. 11-03235-552654 |
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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 July 19, 2022, the Commission received fromPeabody Gateway North Mining, LLC (“Peabody”) 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 April 18, 2022, andbecame a final order of the Commission on May 18, 2022. Peabody asserts that itssafety manager, who processes payments was on vacation and did not return untilApril 25, 2022. In his

absence,the mine controller was instructed to pay the penalties for all the citationsexcept for the one in question. The operator further asserts that, upon thesafety manager’s return, he failed to file the contested citation due tostaffing shortages, a reportable mine injury, and other duties he had to cover.He was made aware of his mistake in not filing when he received a delinquencynotice on July 5, 2022 and promptly filed a motion to reopen with theCommission. 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.

 

            HavingreviewedPeabody’s request and the Secretary’s response, we findthat the safety manager acted in good faith with excusable neglect byinadvertently failing to file the notice of contest due to the staffingshortages and other intervening events occuring at the mine. 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/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:

 

ArthurM. Wolfson, Esq.

Fisher& Phillips LLP

SixPPG Place, Suite 830

Pittsburgh,PA 15222

awolfson@fisherphillips.com

 

EmilyToler Scott, Esq.

Counsel,Appellate Litigation

Divisionof Mine Safety and Health

Officeof the Solicitor

U.S.Department of Labor

20112th Street South – Suite 401 

Arlington,VA 22202-5450

Scott.Emily.T@dol.gov

 

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

Nelson.April@dol.gov

 

Melanie Garris

USDOL/MSHA,OAASEI/CPCO

201 12th StreetSouth, Suite 401

Arlington, VA22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov