Secretary of Labor v. Peabody Southeast Mining, LLC

Plain-English summary

Peabody intended to contest a citation connected to an ongoing dispute over a failure-to-abate order, but a company official recommended paying all 27 assessments in the batch. The citation was paid inadvertently, and the proposed assessment became a final Commission order. The Secretary did not oppose reopening but urged Peabody to improve its penalty-contest process. The Commission found mistake, inadvertence, and excusable neglect, reopened the matter, and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The final assessment and associated order were reopened, and the matter was remanded.
• Key point: An inadvertent payment supported relief where the operator sufficiently explained that it intended to contest the citation.

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.

PEABODY SOUTHEAST MINING, LLC

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SE 2021-0024-M

A.C. No. 01-02901-520230

BEFORE:  Traynor, Chair; Althen and Rajkovich, 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 12, 2020, the Commission received from Peabody
Southeast Mining, LLC (“Peabody”) a motion seeking to reopen a penalty
assessment that appeared to have 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 August 24, 2020. On September 14,
the penalty for the citation at issue in this motion was inadvertently paid
along with 26 other assessments. The proposed assessment would have become a
final order on September 23. Peabody’s motion, and a supporting affidavit, say
that it inadvertently paid the penalty upon the recommendation of a company
official to pay all 27 assessments. The operator did not note that the proposed
assessment included a citation it wished to conference in connection with an
ongoing dispute about a section 104(b) order for failure to abate the violation
cited by the assessment at issue here.  It requests that the Commission reopen
both the mistakenly-paid citation and the associated section 104(b) order. The
Secretary does not oppose the requests to reopen, but urges the operator to
take steps to ensure that future penalty contests are timely filed.

Having reviewed Peabody’s request and the Secretary’s response, we
find that the operator has sufficiently explained its failure to timely contest
the citations at issue as the result of mistake, inadvertence, and excusable
neglect. 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 .

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Commissioner

Distribution (by e-mail):

Arthur M. Wolfson, Esq.

Fisher & Phillips, LLP

Counsel for Peabody Southeast Mining, LLC

6 PPG Place, Suite 830

Pittsburgh, PA 15222

[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]

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]