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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

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 February 10, 2023, the Commission received from 

Peabody Gateway North Mining, LLC (“Peabody Gateway”) a motion seeking to reopen a 

penalty assessment proceeding and relieve it from the Default Order entered against it. 

 

On November 9, 2022, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Peabody Gateway’s perceived failure to answer the Secretary 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 30 days. 

Peabody Gateway asserts that its part-time contractual Safety Manager acted with 

excusable neglect in failing to submit a timely answer to the Petition here, primarily because he 

was distracted and preoccupied by the fact that his “elderly father was injured and hospitalized” 

during the relevant period. Peabody Decl. Ex. A. According to the operator, the part-time 

Safety Manager processes assessments along with the mine’s site safety manager. The part-time 

Safety Manager received the Petition for Assessment of Civil Penalty but was on travel for an 

audit. Due to being distracted from his father’s medical situation, upon returning the Safety 

Manager inadvertently misread the Petition as an Entry of Appearance from the Secretary’s Trial 

Attorney who issued the Petition. Furthermore, when he received the Commission’s Order to 

Show Cause and Order of Default, he asserts he inadvertently misread it because it contained the

term “COVID-19” in the subject line. According to the Safety Manager, he “receive[s] many 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

PEABODY GATEWAY NORTH 

MINING, LLC

:

: 

: 

: 

: 

: 

: 

 : 

Docket No. LAKE 2022-0220 

A.C. No. 11-03235-556483 

January 9, 2024
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emails with ‘COVID-19’ in the subject line which are informational and do not require a 

response and . . . [he thus] mistakenly believed this email to be irrelevant.” Id. Peabody 

Gateway asserts that the Safety Manager’s misreading of the Petition and Order to Show Cause

was contributed to by his family’s medical incident, which took some of his “attention away 

from work” and prolonged the time it took him to realize that he had missed these documents to 

file a timely Answer to the Petition. Id. The operator’s counsel filed the motion to reopen after 

learning of these errors. The Secretary does not oppose the request to reopen, but notes that he

may oppose future requests to reopen penalty assessments that are not answered in a timely 

manner. 

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). 
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Having reviewed Peabody Gateway’s request and the Secretary’s response, we find that 

the operator acted with excusable neglect, particularly in light of his family member’s medical 

situation. The operator, however, should reassess its procedures to ensure that future answers are 

properly filed. In the interest of justice, we hereby reopen the proceeding and vacate the Default 

Order. Accordingly, this case is remanded 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. 

 

_________________________________ 

Mary Lu Jordan, Chair 

_________________________________ 

William I. Althen, Commissioner 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner 

________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Arthur M. Wolfson, Esq.

Fisher & Phillips LLP

Six PPG Place

Suite 830

Pittsburgh, PA 15222

awolfson@fisherphillips.com

Vivian Tyree, Esq.

U.S. Department of Labor

Office of the Solicitor

230 S. Dearborn St., Room 844

Chicago, IL 60604

SOL.CHI@dol.gov

Emelda Medrano, Esq.

U.S. Department of Labor

Office of the Solicitor

230 S. Dearborn St., Room 844

Chicago, IL 60604

medrano.emelda@dol.gov

Chad Barras

Peabody Gateway North Mining

LLC, P.O. Box 369

Coulterville, IL 62237

cbarras@peabodyenergy.com

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

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

scott.emily.t@dol.gov
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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

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov