FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

April 13, 2012

    ORDER ON MOTION TO DISMISS

            Respondent, Stephen M. Reasor, through Counsel, seeks an Order dismissing the Secretary’s Petition on the grounds that the Secretary “failed to act in a timely manner to prosecute her claim.” Motion at 1. The events leading up to this matter began with an accident at the mine on August 20, 2009. Respondent relates that Orders were then issued to the mine on or about January 14, 2010 and terminated the same day. Thereafter, on or about August 8, 2011, the Secretary notified Mr. Reasor that she intended to propose a penalty against him under section 110(c) of the Mine Act.

            Citing section 105(a) of the Mine Act, Respondent notes that it provides that when the Secretary has issued a citation or order, within a reasonable time after the termination of the related inspection or investigation, the Secretary is to notify the respondent of the proposed penalty for such violation. Respondent contends that, as a matter of law, because the proposed penalty was issued nearly two years after the accident which precipitated these events, prejudice inherently resulted. Respondent cites, “the facts that memories grow dim with the passage of time, the potential of unavailable witnesses and lost evidence demonstrates actual prejudice to Mr. Reasor, the accused, who becomes less able to present a viable defense thus shifting the advantage unfairly to the government.” Motion at 2.

            Analogizing a section 110(c) matter to a criminal proceeding, Respondent asserts that fair play and due process concepts “must be even more carefully protected. Id., citing two administrative law judge decisions. (emphasis in motion).

            The Secretary filed a “Reply” to the Respondent’s Motion, arguing, on several grounds, that the assessments here were issued within a “reasonable time.” The Secretary first notes that, following MSHA’s investigation of the fatal accident at the mine, its section 110(c) investigation continued. The Secretary observes that the Commission itself has acknowledged that the Agency’s increased enforcement efforts, coupled with a concomitant increase in matters being contested by mine operators, has led to longer times for the Agency to process matters of all sorts.

            The Secretary also contends that, even if one uses the different, longer, time frame measure suggested by the Respondent, its efforts were still completed within a reasonable time. This contention is based on the “deliberate and careful investigation” MSHA must carry out, a responsibility it considers to be more significant where an individual is the subject of the investigation. Reply at 2-3.

            Turning to Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984), (“Chevron”), the Secretary also states that its interpretation of the “reasonable time” provision is due deference and it notes that in Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005), that court concluded that the Secretary’s interpretation of “reasonable time” was afforded deference where a 17 month span had elapsed.

            Moving to a different basis of defense to the motion, the Secretary contends that, even if one were to assume that the time frame was not reasonable, dismissal would not be the appropriate remedy. Reply at 5, citing Brock v. Pierce County, 476 U.S. 253, 265 (1986), a case which dealt with a Comprehensive Employment and Training Act matter. There, the Supreme Court viewed a 120 day time period as intending “to spur the Secretary to action, not limit the scope of his authority.” Reply at 6. Thus, finding no case contradicting that tenet, the Secretary asserts that, absent an express statement from Congress that precludes government action after a time period expires, the government should not be precluded from acting on that basis alone. Supporting this view, the Secretary observes that Congress did not include any consequence for failing to complete an investigation within a reasonable time. Id. at 7. In fact, the contrary conclusion was indicated in the Mine Act’s legislative history.

            The Secretary’s Reply goes on to present additional reasons why the Respondent’s Motion should be denied. It notes that a contrary conclusion would effectively amount to a windfall to the Respondent. Id. at 10. The Court agrees that, within the four corners of Respondent’s Motion, granting it would amount to a windfall.

            Last, the Secretary maintains that, even if it were assumed that a penalty could be avoided on the basis that MSHA did not act within a reasonable time, prejudice must exist from the delay. While citing a host of cases in support of that principle under other Acts, the Secretary notes that, in an apt analogy, the Commission itself has endorsed that approach. In Sec’y of Labor v. Old Dominion Power Co., 6 FMSHRC 1886 (1984), rev’d on other grounds, 772 F.2d 92 (4^th Cir. 1985), it addressed the mine operator’s “reasonable promptness” argument, observing that the mine had not shown any prejudice from the delay and further noting its full awareness since the miner’s fatal accident.

FURTHER DISCUSSION.

            As the Secretary has noted, using two years as the time frame to assess whether MSHA issued its proposed civil penalty, per section 105(a) of the Mine Act, within a reasonable time is an incorrect measure because the starting point is after the termination of the pertinent inspection or investigation. Here, that means after January 14, 2010. Accordingly, the “two year” time frame becomes 1 year 7 months and 1 week. More significant, in terms of the jeopardy one faces under a section 110(c) proceeding, than either of these measures, is that Mr. Reasor was notified only 9 months after the orders were issued that he was being considered for a penalty under that provision. Thus, in terms of any concerns about fair play and due process, Mr. Reasor had actual knowledge as to what the Agency was considering for him in short order. Any prudent individual would be about preparing defenses from that time forward, as opposed to waiting to see if delay by MSHA could constitute a bar to its action. In the same vein, a prudent person, aware of MSHA’s intentions, would be gathering evidence related to the events and talking with potential witnesses to guard against memories dimming.

            Accordingly, based on the foregoing, the Court concludes that, measured in the context of the large number of contested cases and the immense backlog which developed in connection with that, the Secretary has acted within a reasonable time. Further, Respondent Reasor has presented no evidence of any actual prejudice from the delay. Therefore, the Motion to Dismiss is DENIED.

            While the motion has been ruled upon, none of the foregoing suggests at all that the “reasonable time” provision is meaningless. To the contrary, as the Court has indicated, Mr. Reasor will be able to present evidence that the delay prejudiced his defense, but this will have to be in a real, not a speculative, or presumptive, manner.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

A. Scott Hecker, Esq.

Office of the Solicitor

1100 Wilson Boulevard

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William E. Bradshaw, P.C., Esq.

302 Shawnee Avenue

P.O. Box 267

Big Stone Gap, VA 24219