FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

April 27, 2012

    ORDER REGARDING SECRETARY’S REQUEST FOR CLARIFICATION OF ORDER ON MOTION TO DISMISS

            On April 13, 2012, the Court issued its Order on Motion to Dismiss in this matter, finding that the Secretary acted within a reasonable time in issuing its notification of intent to propose a penalty against Mr. Reasor, that its proposed penalty was issued within a reasonable time, and that no prejudice was demonstrated by the passage of time involved. Now the Secretary has asked for clarification of the Court’s Order, as to whether the “reasonable time” requirement is measured from the conclusion of the Agency’s accident investigation or the conclusion of its section 110(c) investigation.

            The Secretary’s request for clarification is reasonable. At the outset, the Court believes that its prior Order clearly suggested that, and now expressly finds that, even if the “reasonable time” were to be measured from the time of the conclusion of the Agency’s accident investigation, the Secretary acted within a reasonable time. However, now focusing on the proper starting point for measuring the reasonable time, the Court, for the reasons which follow, finds that the time begins to run at the conclusion of the Agency’s section 110(c) investigation.

            The language employed by section 110(c) does not offer any direct guidance about investigations or time periods, but it does note that individuals who violate a mandatory health or safety standard are subject to the same civil penalties as mine operators. In section 110(c) matters the Commission looks to section 105(a) of the Mine Act, applying the same “reasonable time” requirement for notifying a mine operator of a proposed civil penalty. Accordingly, the reasonable time notification aspect applies in both instances to a time “after the termination of such inspection or investigation.” It would seem that, as there are distinct investigations for a section 104 matter and a 110(c) matter, the conclusion of any investigation associated with a section 110(c) matter is the only reasonable point in time to gauge the Secretary’s action.

            Decisions by Commission administrative law judges and the Commission itself support this conclusion. For example, in Laurel Run Mining Co., 19 FMSHRC 437, 1997 WL 144994 (Feb. 1997), a section 110(c) action, the respondent made a similar claim that the Secretary had failed to act within a reasonable time in issuing its proposed penalty against Laurel Run’s agent. There, the accident investigation was completed in October 1994 but the proposed penalty assessment was not made until some 21 months later, in July 1996. The judge stated that the operable time period in such cases is the “period between completion of MSHA’s 110(c) investigation . . . and [the] notification [date] of the proposed penalties . . . .” Id. at * 441. Thus, applying that time measure, the judge determined that 12, not 21, months had elapsed. Applying that measure, the judge found that delay to be within the “reasonable time” period.

            In Wayne Jones, Mike Sumpter et al, 20 FMSHRC 1267, 1998 WL 993717, (Nov. 1998), another case alleging that civil penalties were not filed within a reasonable time, an Order and a determination to conduct a 110(c) investigation occurred during August 1996 but a special investigator was not assigned in the matter until February 1997. That investigative process took until October 1997 before it was referred to the Solicitor’s Office and it was not until February 1998 that the individual respondents were notified of MSHA’s intent to assess 110(c) penalties against them. The judge noted that, while section 104(a) of the Mine Act requires citations to be issued with reasonable promptness, there is no binding authority to require dismissal based on Secretarial delay in its investigation. Id. at *1270. Distinguishing the decision of another administrative law judge, the judge in Wayne Jones, Mike Sumpter et al found that there were credible reasons for the delay, citing the Agency’s heavy case load. Describing dismissal as a harsh remedy, the judge rejected the claim that passage of time itself demonstrated inevitable fading of memories, stating that “prejudice will not be incurred from passage of time alone.” Id. at 1271. Implicitly, the judge was evaluating the “reasonable time” from the point in time when it was decided to perform, and then conclude, a special investigation, as that court referenced the time period when the Section 110(c) investigation was being conducted. Id. at *1268, *1271.

            In Paiute Aggregates Inc., 24 FMSHRC 943, 2002 WL 31934297 (Oct. 2002), the same “reasonable time” issue was presented. As in Laurel Run Mining Co. (supra), the judge in Paiute Aggregates used as his time measure the date the date of the 110(c) investigation and its completion in evaluating the “reasonable time” issue. Id. at *943-944. Also, in CDK Contracting Company, 25 FMSHRC 71, 2003 WL 21439207 (Feb. 2003), the same “reasonable time” issue was at hand. There the court was considering civil penalties against the mine, but the case is still instructive as the judge was measuring the time that elapsed after the termination of the accident investigation.

            Last, in Sec’y v. Sedgman and David Gill, Employed by Sedgman, 28 FMSHRC 322, 2006 WL 1970212 (June 2006) (“Sedgman and Gill”), a majority of the Commission found that an 11 month delay in assessing the civil penalty was not unreasonable, “given the ongoing section 110(c) investigation.” A fatality had occurred at the mine’s preparation plant. There, the Secretary, following an accident investigation report, issued citations to Sedgman in early February 2002, with a proposed penalty for that in May 2002, and subsequently, a second proposed penalty arising out of the same matter was issued on December 31, 2002, a period of 11 months after the February 2002 citation had been issued. The Commission’s recounting of the facts noted that “[d]uring that time and beyond, MSHA conducted a special investigation that culminated on April 2, 2003, in charges being brought against Gill . . . under section 110(c) of the Act . . . [and] [o]n August 18, 2003, the Secretary proposed a penalty . . . against Gill.” Id. at * 4. Thus, the Commission itself has recognized these are separate investigations which are not to be blurred, as a section 110(c) matter is distinct from one made under section 105(a). Id. at *14.

            In the same case, the Commission noted that in Twentymile Coal Co., 26 FMSHRC 666, (Aug. 2004), rev’d on other grounds, 411 F.3d 256 (D.C. Cir. 2005) (“Twentymile I”), the D.C. Circuit rejected the Commission’s calculation for determining the reasonable time for notification of its proposed penalty by determining that the date of the issuance of the accident report was the measure, not the date the citation or order was issued, nor the date it was terminated. In opting for the accident report’s issuance, the D.C. Circuit was deferring to the Secretary’s interpretation, finding it to be reasonable. Id. at *13.

            Accordingly, for the reasons set forth above, the Court finds that the measuring point for assessing the “reasonable time” for notification of a proposed penalty in a section 110(c) matter is upon the conclusion of MSHA’s 110(c) investigation.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

A. Scott Hecker, Esq.

Office of the Solicitor

1100 Wilson Boulevard

22^nd Floor West

Arlington, VA 22209-2247

Patrick F. Nash, Esq.

Attorney at Law

129 West Short Street

Lexington, Kentucky 40507