FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th
Street, Suite 443
Denver, CO 80202-2536
303-844-5267/ FAX
303-844-5268
May 13, 2013
|
SECRETARY OF LABOR, v. DINO TRUJILLO, employed by Mountain
|
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING Docket No. WEST 2013-389-M
Mountain Cement Company
|
ORDER DENYING RESPONDENT’S MOTION TO DISMISS
Before: Judge Manning
This case is before me under section 110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(c) (the “Mine Act”). Dino Trujillo (“Respondent”), who was a maintenance supervisor for Mountain Cement Company (“MCC”), contested the proposed penalty filed by the Secretary of Labor. Respondent filed a Motion to Dismiss due to the Secretary’s delay in proposing a penalty for the alleged violation and the Secretary filed a reply in opposition to the motion. For the reasons set forth below, I deny Respondent’s motion to dismiss the proceeding.
On February 11, 2010, MSHA issued 104(d)(1) Order No. 6447118 to MCC alleging a violation of section 56.14107(a). Section 56.14107(a) mandates that moving machine parts must be guarded to prevent miners from contacting those parts. 30 C.F.R. § 56.14107(a). Order No. 6447118 states, in part, that Respondent removed the guard for a shuttle belt. (Ex. R-A).
On April 5, 2011, MSHA informed Respondent that it intended to file a 110(c) proceeding against him as an agent of MCC. MSHA conducted a 110(c) conference call with Respondent on May 6, 2011, to discuss the issues. On June 6, 2011, I was informed that the 110(c) investigation had been forwarded to MSHA headquarters for a decision.[1] On January 3, 2013, MSHA issued its proposed penalty under section 110(c) to Respondent for $3,500.00. MSHA alleges that Respondent knowingly authorized, ordered, or carried out MCC’s violation of section 56.14107(a). Respondent contested the penalty on January 17, 2013. The Secretary filed his petition for assessment of civil penalty on March 1, 2013, and Respondent filed a Motion to Dismiss on March 28, 2013.
Respondent argues that this proceeding should be dismissed because the Secretary failed to show adequate cause for an unreasonable delay that prejudiced Respondent. Section 554(b) of the Administrative Procedure Act requires that the Secretary file a petition for penalty in a timely fashion and section 105(a) of the Mine Act requires that the length of time to do so be reasonable. Numerous Commission judges have applied the law developed under section 105(a) to alleged 110(c) violations. The Secretary did not file his petition in a reasonable or timely fashion and he did not show adequate cause for his delay. The Secretary’s delay also prejudiced Respondent, which means that the proceeding should be dismissed even if the Secretary had shown adequate cause. The Secretary’s delay was 1,057 days long, which fundamentally causes prejudice because it violates Respondent’s due process and causes the memory of witnesses to fade. Respondent also argues that public policy favors dismissal of this proceeding.
The Secretary argues that the Secretary’s Petition should not be dismissed because it was not filed late, was not filed in unreasonable time, and did not prejudice Respondent. The Secretary also argues that Congress did not intend to authorize the Commission to dismiss penalties as the result of procedural delays. The Secretary filed his petition within 45 days of the notice of contest and within five years of the issuance of the underlying order.
I find that the “reasonable time” standard in section 105(a) applies to section 110(c).[2] Section 105(a) of the Mine Act states that the Secretary “shall, within a reasonable time after the termination of such inspection or investigation notify the operator by certified mail of the civil penalty proposed to be assessed under section 110(a).” 30 U.S.C. § 815(a) (emphasis added). Neither party argues that 105(a) should not apply to 110(c) and Commission administrative law judges have consistently agreed that it should. Christopher Brinson, Gerald Hastings, Ronald Colson, 35 FMSHRC __, slip op. at 4, SE 12-340M (May 7, 2013); Dyno Nobel East-Central Region, 35 FMSHRC __, slip op. at 1, LAKE 11-13 (Jan. 2, 2013) (ALJ); Stephen Reasor, 34 FMSHRC 920, 924 (Apr. 2012) (ALJ); Doyal Morgan, 20 FMSHRC 40 (Jan. 1998) (ALJ).
Application
of the 105(a) reasonable time requirement requires evaluating and balancing the
competing interests of respondents and the Secretary. Procedural fairness is a substantial concern
under the Mine Act. Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July
1981). The expeditious resolution of
penalty cases is also a public interest.
Buck Creek Coal, 17 FMSHRC
500, 503 (Apr. 1995); Scotia Coal Mining
Co., 2 FMSHRC 633, 635 (Mar. 1980). The
overriding purpose of the Mine Act, however, is addressing the public interest to
protect miners by enforcing the Secretary’s safety and health standards. When an important public interest is at
issue, “the great principle of public policy” dictates that procedural failures
by an agency do not automatically void subsequent agency action. Brock
v. Pierce County, 476 U.S. 253, 260 (1986).
It is, however, a “basic principle of administrative law that
substantive agency proceedings” may be overturned upon a showing
prejudice. Salt Lake, 3 FMSHRC at 1716.
Without a respondent’s showing of prejudice, it is “inappropriate” to
dismiss a citation or order based upon the Secretary’s delay. Twentymile
Coal Co., 411 F.3d 256, 262 (2005).
I deny Respondent’s Motion to Dismiss because Respondent
failed to show prejudice. Effectuating
the substantive goals of the Mine Act to protect the health and safety of
miners is the primary purpose of the Mine Act, which is why the operator must
show prejudice before the dismissal of its case. Respondent cites the length of the
delay as the cause of prejudice, stating that “the delay alone is fundamentally unfair” and the memory of
defense witnesses will have faded. (R.
Mot. at 11). I hold, however, that Respondent’s
showing of prejudice must be “real or substantial” and “mere
allegations of potential prejudice or inherent prejudice should be rejected.” Long Branch Energy,
34 FMSHRC 1984, 1991-93 (Aug. 2012). Respondent claims that prejudice is
inevitable due to the length of the delay.
Respondent does not cite specific instances of prejudice or difficulties
of locating evidence or witnesses. Respondent
shows no real or substantial prejudice and does not provide specific facts in
an attempt to show prejudice.
I disagree
with Respondent’s argument that the Commission’s test in Long Branch Energy controls in this instance. There is no specific procedural rule
that governs 110(c) and the current case does not involve a violation of Procedural
Rule 28(a). [3] Although the Secretary must act within
reasonable time, no period of delay shorter than the five year limitation cited
by the Secretary is per se
unreasonable.[4] See Gabelli v. S.E.C.,
133 S.Ct. 1216, 1219 (U.S. 2013). Considering
that the Mine Act’s main concern is mine safety, I do not believe that the
initial burden should be placed upon the Secretary in this instance because
there was no violation of the Commission’s procedural rules. Respondent, therefore, must show that it was
actually and meaningfully prejudiced by the Secretary’s delay in filing the
penalty proposal. See Twentymile Coal Co., 411
F.3d at 262. The burden is also upon
Respondent because he is the moving party.
I hold that the Secretary’s petition for penalty should not be dismissed
at this stage of the proceeding because there was no showing of actual prejudice
by Respondent.[5]
Respondent’s Motion to Dismiss this
proceeding his hereby DENIED and he
is ordered to file his answer to the Secretary’s petition for assessment of
civil penalty within 30 days of the date of this order.
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Jason Grover, Esq., Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West,
Arlington, VA 22209-2247
Jason Nutzman, Esq., Dinsmore &
Shohl, LLP, Huntington Square, 900 Lee Street, Suite 600, Charleston, WV 25301
RWM/bjr
[1] This information was provided in response to an inquiry I made in the penalty case brought against MCC as to the status of the section 110(c) investigation.
[2] Respondent argues that the proceeding should be dismissed because Secretary violated the “timely” requirement of the Administrative Procedure Act. 5 U.S.C § 554(b). For the purposes of 110(c) proceedings, timely filing is defined by section 105(a) of the Mine Act. The timely requirement in section 554(b), therefore, is met by the Secretary if he complies with section 105(a) of the Mine Act.
[3] Long Branch
concerns the application of 105(a) to 110(a) and a respondent’s motion to
dismiss due
to the procedural delay of the Secretary.
Section 110(a) and section 110(c) violations are subject to the
Commission’s Procedural Rule at 29 C.F.R § 2700.28. Long
Branch addresses a violation of Procedural Rule 28(a), which states “[w]ithin 45 days of receipt of a timely
contest of a proposed penalty assessment, the Secretary shall file with the
Commission a petition for assessment of penalty.” 29 C.F.R §
2700.28(a). The Secretary violates Rule
28(a) if he files his petition for assessment of civil penalty more than 45
days after the respondent contests the penalty proposal. The initial burden of proof, therefore, falls
upon the Secretary to show adequate cause for the delay if he violates Rule
28(a).
34 FMSHRC at 1992. Cases under the Long Branch test can be decided “solely
on the adequacy of the cause provided by the Secretary[,]” without a
respondent’s showing of prejudice. Id.
It is important to recognize that the present case involves the period
of time between the “termination of [the] inspection or investigation” and
Respondent’s notification of the proposed penalty. The Secretary timely filed his petition for
assessment of civil penalty 43 days after Respondent contested the penalty
proposal. Thus, Rule 28(a) was not
violated by the Secretary.
[4] Which time
period should be considered in the “reasonable time” analysis is not
controlling under the facts in this case.
I hold, however, that the relevant time period commenced at the
conclusion of MSHA’s section 110(c) investigation. See Twentymile Coal Co., 411
F.3d at 261-62.
[5]
Commission
Judge Jeffrey Tureck, in a recent order involving similar issues, acknowledged
that Long Branch did not concern the
period of time to notify a respondent of the penalty proposal. Christopher
Brinson et al. 35 FMSHRC ____, Slip Op. at 6, No. SE 2012-340-M (May 7, 2013). He denied the respondents’ motions to dismiss
several section 110(c) proceedings because there was no substantial delay
between the time the Secretary concluded his special investigation and when he
proposed penalties under section 110(c).
Id. at 5. Judge Tureck went on to apply the principles
of Long Branch assuming arguendo that the relevant time period
commenced with the issuance of the citation and he applied the two part test
set forth in that decision and in Salt
Lake County. He applied those
decisions because “they concern the length of time it is reasonable to permit
the Secretary to delay an action and the legal standard to apply in making this
analysis. . . .” Id. at 6. In that respect,
Judge Tureck’ s analysis of the legal issues differs from mine.
Furthermore, I find that the Secretary presented “adequate cause” for his delay. The Secretary fulfilled his burden in Long Brach because he proffered an adequate cause or non-frivolous explanation for his delay: the increased workload of MSHA during the relevant time period, which delayed the issuance of 110(c) penalties. Id. at 1992. Under my analysis such a showing was not necessary, however.