FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

May 16, 2012

    ORDER ON MOTION TO DISMISS

            Respondent, David R. Arnold, 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 a fatal accident at the mine on August 20, 2009. Respondent relates that Orders were then issued to the mine on or about August 25, 2009 and terminated on September 9^th of that year. Thereafter, on or about August 8, 2011, the Secretary notified Mr. Arnold that she intended to propose a penalty against him under section 110(c) of the Mine Act.

            On April 13, 2012 the Court issued its Orders on Motions to Dismiss in two related section 110(c) matters: Secretary v. Stephen M. Reasor, employed by Big Laurel Mining Corporation, VA 2011-678, and Secretary v. Robert J. Silcox, employed by Big Laurel Mining, VA 2011-680. The Reasor Order is representative of the issues in each of these Motions, including this Order on the Arnold Motion to Dismiss and it is attached as an Appendix to this Order. The only significant distinguishing feature between the Arnold Motion, addressed in this Order, and the other related Motions to dismiss the section 110(c) actions, is that in the Arnold Motion, Counsel filed a Response to the Secretary’s Reply. Following that submission, the Secretary filed a Motion to Strike the Response from Arnold. The Court elected to consider the Arnold Response and therefore implicitly denied the Secretary’s Motion to Strike. However, having considered the Response, the Court arrived at the same conclusion it reached in the Silcox and Reasor Motions for the reasons articulated in those Orders. Accordingly, Arnold’s Motion to Dismiss is DENIED.

            Although the reasoning provided in the Court’s Orders in Silcox and Reasor applies with equal force in Arnold’s Motion and therefore the reader is directed to the Appendix which contains the Order in Reasor, the following additional comments are made. In the Court’s April 27, 2012 Order Regarding Secretary’s Request for Clarification of Order on Motion to Dismiss, in Reasor, VA 2011 678, which is included as APPENDIX II to this Order, the Court determined, in the context of section 110(c) actions, that the time frame for measuring the reasonable time requirement does not begin until the conclusion of the Agency’s section 110(c) investigation. See, APPENDIX II, infra. Arnold was notified as of June 21, 2010 that MSHA was proposing an individual penalty against him. There is no dispute about the date of this notification. While the proposed penalty itself was not issued until August 8,2011, Arnold was on notice some 13 months-plus earlier of the Agency’s intentions regarding an individual civil penalty against him. Therefore, as the date of the underlying fatal accident is not the date to assess the reasonableness of the Secretary’s action, but rather, at the earliest, the June 21, 2010 notification represents the starting point, it cannot be said that demonstrates a failure to issue its proposed penalty within a reasonable time. Two factors are at work. First, the time frame from June 21, 2010 to August 8, 2011, a thirteen month time frame is not per se an unreasonable time. Second, Arnold knew what he was facing in terms of potential Mine Act liability from that June 21, 2010 moment on.

Thus, the observation the Court made in the Reasor matter is applicable here as well:

            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.

Reasor Order at 5.

            The Court reviewed the Respondent’s Response but found that, at the end of the day, it changed nothing in terms of the effort to have the matter dismissed. While the Response repeats itself in the space of its ten pages, listing five bases of prejudice, none of them, individually or cumulatively, demonstrate actual prejudice to Mr. Arnold. Response at pages 4 and 9.

            Accordingly, while the Motion is DENIED, additional comments from Reasor are also apropos. There, the Court noted:

                        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. Notwithstanding that observation, the Court notes again that, as the

                        burden of proof remains with the government, there is nothing to

                        prevent the Respondent from asserting defenses at any hearing which

                        may ensue, relating to lost evidence, as well as to witnesses who have

                        become unavailable or whose memories have faded through time.

See APPENDIX I, Reasor Order at 5 and n. 10.

                                                                                    /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

Rebecca J. Oblak, Esq.

Bowles, Rice, McDavid, Graff & Love, LLP

700 Hampton Center, Suite K

Morgantown, WV 26505

APPENDIX I

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

    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 (4th 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.

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

APPENDIX II

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

    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.

                                                                                                William B. Moran

                                                                                                Administrative Law Judge