Secretary of Labor v. Ludwig Explosives, Inc.

Plain-English summary

Ludwig Explosives relied on a risk-management consultant who calculated the penalty-contest deadline as 30 business days instead of 30 calendar days. The consultant explained that a family medical emergency and a separate docket confirmation contributed to his confusion. The Secretary did not oppose reopening but urged the operator to ensure future contests are timely. The Commission found excusable neglect, reopened the assessment, and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: Confusion about the deadline, reinforced by a separate docket and a documented family emergency, supported relief from the final order.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON,
DC 20004-1710

January 19, 2021

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA)        

v.

LUDWIG
EXPLOSIVES, INC.

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Docket
No. LAKE 2020-0033

A.C.
No. 11-01657-500192

BEFORE:  Rajkovich,
Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On November 20, 2019, the Commission received
from Ludwig Explosives, Inc. (“Ludwig”) 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 September 30, 2019, and became a
final order of the Commission on October 30, 2019. Ludwig asserts that it had a
lay person (a risk management consultant) handle the contest and that the
consultant had filed it within thirty business days. The Secretary found it was
late because it was not filed within thirty calendar days. The consultant
further explains with detail how he has been experiencing a family medical
emergency, which contributed to his confusion about the computation of the deadline.
In addition, he cites to a confirmation of receipt from the Chief
Administrative Law Judge regarding the operator’s notice of contest of the
citation, with an order of assignment to an ALJ (LAKE 2020-0021-RM), as a
contributing factor to his confusion. 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
reviewed Ludwig’s request and the Secretary’s
response, we find that the operator acted with excusable neglect due to
the confusion from the separate docket and his family medical emergency. 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/ Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor, III , Commissioner

Distribution (e-mail):

Daniel
P. Foltyniewicz,

Ludwig
Explosives, Inc.

P.O.
Box 5312

Wheaton,
IL 60189

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12 th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12 th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12 th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]