FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Specific issues include: whether the Secretary can establish adequate cause for his late filing and, if so, whether Respondent can establish actual prejudice. If Respondent can establish actual prejudice, the question becomes whether, pursuant to Commission holdings in Salt Lake Road Department, 3 FMSHRC 1714 (July 1981)(“Salt Lake”) and Long Branch Energy, 34 FMSHRC 1984 (Aug. 2012) (“Long Branch II”), a balancing of the public interest and harm to each party would require dismissal.

PROCEDURAL HISTORY

Given the prehearing agreement that the February 12, 2013 hearing would be limited to the issue of untimeliness of the Secretary’s Petition and given the thorny procedural history associated with the instant case, the undersigned shall review the procedural history at length.

On November 19, 2008, an accident had occurred at Respondent’s Mine No. 1 (“Mine”). After an investigation of the circumstances surrounding the accident, Donald Foster (“Foster”), employed in MSHA’s Coal District No. 2 (“District 2”), concluded that Respondent had violated 30 CFR § 48.27(a)(3), involving the mandatory health and safety training of miners as to tasks in which they have had no previous experience. Order No. 7021450, associated with Docket No. PENN 2009-585, was issued by Foster on November 24, 2008.

The Order was subsequently forwarded to MSHA’s Office of Assessments. On June 9, 2009, the Office of Assessments issued its proposed civil penalty. Ex. R-2.[1] On June 26, 2009, Respondent contested the proposed assessment. Ex. R-3. The Secretary received mail service of such on July 1, 2009. Ex. R-3. The Office of Assessments thereupon forwarded this matter to District 2. Tr. 27, 55, 56, 102-103.

Pursuant to 29 CFR § 2700.28, the Secretary shall file a petition for the assessment of civil penalty with the Commission within forty-five days of receipt of a timely contest. Forty-five days from July 1, 2009 was August 15, 2009. However, as the deadline fell on a Saturday, the Petition was due on the following Monday.[2]

On August 7, 2009, within said extended forty-five day period, Edward Lewetag (“Lewetag”), Supervisory Conference and Litigation Representative (“CLR”) of the Secretary’s District 2 office in Mount Pleasant, Pennsylvania filed a request for a ninety day extension of time to file a petition. Chief Administrative Law Judge Robert Lesnick (“Chief Judge Lesnick”) granted the extension on October 8, 2009. On November 13, 2009, the Secretary filed a second request for a ninety day extension to file a petition, which was granted on November 13, 2009 by Chief Judge Lesnick. Ex. S-8-01; See also Tr. 95.

On February 9, 2010, the Secretary filed his third request for extension of time, which was granted by Chief Judge Lesnick on March 11, 2010. With the granting of the third extension request, the due date for filing the Petition was May 10, 2010 (emphasis added). On November 9, 2011,[3] the Secretary filed his Petition in the instant case together with a motion for leave to file a late petition. Ex. R-4.

On November 15, 2011, Respondent filed a response in opposition to the Secretary’s motion for leave to file a late petition, as well as a motion to dismiss late filed petition. On January 25, 2012, Chief Judge Lesnick issued an order accepting the Secretary’s Petition and denying Respondent’s request for dismissal.

On March 2, 2012, Chief Judge Lesnick certified this matter for interlocutory appeal. On March 15, 2012, the Commission ordered interlocutory review. Following the Commission’s August 20, 2012 decision in Long Branch II, supra, this matter was remanded to Chief Judge Lesnick for further proceedings. See Pocahontas Coal Company, et al., 34 FMSHRC 2561, 2563 (Oct. 2012). According to Pocahontas Coal Company, the Commission allowed Respondent to renew its motion to dismiss. Id. On October 23, 2012, Chief Judge Lesnick assigned this matter to the undersigned.

After prehearing conferences, it was agreed by the parties that this Court would bifurcate the case, initially holding a hearing solely limited to the issue of whether the Secretary’s Petition should be dismissed due to untimely filing. As noted supra, the hearing was accordingly held on February 2, 2013. This decision is based upon said hearing testimony and the parties’ post-hearing and reply briefs.

SUMMARY OF THE TESTIMONY

I. Rebecca Kollar

At hearing, Rebecca Kollar (“Kollar”) appeared and testified on behalf of the Secretary. Kollar testified that she worked for MSHA in its District 2 Mt. Pleasant office. Tr. 25-26. She started with MSHA in October 2006, and her original position was Mine Safety and Health Assistant SI. Tr. 26. Kollar later became an assistant for the CLRs in March 2008. Tr. 26. According to Kollar, due to the increase in paperwork and the civil penalty cases, it had become necessary to create separate positions: one assistant for special investigations and one for conference and litigation. Tr. 26.

During the time period between 2009-2010, Kollar was responsible for all of the administrative work associated with litigation. Tr. 27. When a new case came into the office, she would receive it from the Office of Assessments, “telling (her) it was a docket.” Tr. 27. She would request notes from the field office and citations, set up the folder and enter the information into a spreadsheet that she used to keep track of the dockets. Tr. 27.

After creating the case file, Kollar assisted the CLRs with their active cases in the following ways. She would send out ninety-day extension letters. Tr. 27. When necessary, she would mail cases to the Solicitor’s office, or possibly another district. Tr. 27. Whatever her supervisor requested, she would perform, including keeping track of statistics on the caseload in the office by maintaining a spreadsheet. Tr. 27-28. Each month, she submitted a report to headquarters, providing a “snapshot of what was in the District office at that time.” Tr. 28.

Referring to the Secretary’s Exhibit 1, Kollar identified the document as the monthly report submitted to headquarters in February 2009. See also Tr. 28. In preparing monthly reports, she stated that she would review her spreadsheet, including the caseload in the office, to compile the numbers “to give […] an idea of what needs to be worked on in the district.” Tr. 28. On page 1 of Secretary’s Exhibit 1, the Conference Backlog referred to safety and health conferences, also possibly including penalty cases that were set up in conferences. Tr. 29. Civil penalty cases were cases in which the penalty had already been assessed; safety and health conferences were cases where the penalty had not yet been assessed. Tr. 29. “Enhanced” safety and health conferences signified cases where the penalty had already been assessed. Tr. 29.

Under “Contested Cases,” the cases were broken down into ones in which a petition had been filed and ones in which a petition had not yet been filed. Tr. 29; Ex. S-1. There was some overlap between the cases where petitions had not been filed and the conference backlog because not every civil penalty cases listed in the report was in a conference at that time. Tr. 29. Since the cases were not all set up in an enhanced conference, there could be some overlapping in the numbers. Tr. 29-30.

The total of 140 in the conference backlog signified that there were 140 conferences that needed to be worked on; the number of violations, 571, stood for the amount of citations involved in the 140 conferences. Tr. 30.; Ex. S-1, pg. 1. The number 186 reflected the number of civil penalty cases in the office that were awaiting petitions to be filed, and the number 719 indicated the number of violations/citations associated with such. Tr. 31; Ex. S-1, pg. 1. The number 59 indicated the number of cases in which the civil penalty petition had been filed, and the number 144 indicated the number of citations/violations involved. Tr. 30; Ex. S-1, pg. 1. Kollar kept track of the cases in which petitions had been filed on her spreadsheets. Tr. 30; Ex. S-1.

Further referring to the Secretary’s exhibit, Kollar stated in May 2009, there were 302 conferences involving 1,200 citations in the conference backlog. Tr. 31; Ex. S-1, pg. 4. The number of CLR contested cases in which no petition had been filed was 309, which involved 1,245 violations. Tr. 31; S-1, pg. 4. There were also 34 pending CLR cases in which a petition had been filed involving 62 violations. Tr. 32; S-1, pg. 4.

Kollar testified that in August 2009, there were 449 conferences with 1,869 violations in the backlog. Tr. 32; Ex. S-1, pg. 7. The CLR contested cases in which a petition had not been filed numbered 414 with 1,728 violations. Tr. 32, Ex. S-1, pg. 7. Pending contested cases in which a petitions had been filed numbered 15 with 32 violations. Tr. 32; Ex. S-1, pg. 7.

Kollar stated that in November 2009, there were 470 conferences involving 1,966 violations in the backlog. Tr. 32-33; Ex. S-1, pg. 10. The number of cases where a petition had not been filed was 512 with 2,086 violations, and 4 cases with 7 violations had been filed. Tr. 33; Ex. S-1, pg. 10.

Finally, Kollar testified that in February 2010, there were 454 conferences with 1,899 violations in the backlog. Tr. 33, Ex. S-1, pg. 13. The number of cases where a petition had not been filed was 543 with 2,194 violations. Tr. 33, Ex. S-1, pg. 13. There were 26 cases involving 126 violations where petitions had been filed. Tr. 33; Ex. S-1, pg. 13.

Kollar indicated that during her tenure as a CLR assistant, the number of backlog cases grew on a monthly basis. Tr. 33-34. There were three CLRs dealing with the influx – Edward Lewetag, Joseph Hardy and Eugene Kelly. Tr. 34. However, Kollar was the only CLR assistant. Tr. 34. In an effort to deal with the increasing backlog, Kollar, at the direction of headquarters or Lewetag, began submitting ninety-day extension letters to the Commission to extend the date for filing a petition for civil penalty. Tr. 34. She further prepared her spreadsheet so that she could be reminded when a petition was due, and a request for extension of time had to be made and/or when re-extension of time had to be made. Tr. 35. She usually checked the spreadsheet on a daily basis. Tr. 35. If she had spare time, she would draft letters requesting extensions in advance, sometimes a week or more in advance. Tr. 35. Lewetag would sign the extension requests and Kollar would mail them to the Commission; however, she would wait for Commission approval to notify the operators. Tr. 35-36.

Kollar could not remember specifically how often the Commission approved the extension of time requests nor could she remember having received any denials of the request. Tr. 36. The approval time typically ranged from “a couple every day” to a few weeks. Tr. 36. She would then usually deal with Susan Jordan (“Jordan”) in the Solicitor’s office, and Lewetag would direct her as to what cases need to be sent to the Solicitor’s office. Tr. 36-37.

Once Kollar was directed to forward a case to the Solicitor’s office, she would pull the case out of the filing drawer and double check “to make sure it had everything in it that it needed.” Tr. 37. She would then package it and mail it to the Solicitor by certified mail. Tr. 37. She noted in a separate tab of her spreadsheet the date she had mailed the case file so that she would know what happened to the case. Tr. 37. She would also normally contact Jordan by email that a particular case was being sent. Tr. 37. The cases sent would remain on Kollar’s spreadsheet until she “received the green card back that the docket was actually signed for.” Tr. 38. She identified Secretary’s Exhibit 2 to be a copy of the certified receipt card, which was on a package mailed to Jordan that contained five cases. Tr. 38. Kollar also identified her email advising Susan Jordan of the mailing. Tr. 39, Ex. S-1, pg. 2. The instant case was included in the mailing, and the return receipt card was dated January 30, 2010. Tr. 39; Ex. S-2, pg. 2. Kollar submitted an extension letter for this docket in February 2010, which was linked to Docket No. PENN 2009-586, another PBS Coals docket with the same assessment control number. Tr. 40.[4]

In October 2011, Kollar received an email “looking for some petitions that were not filed with the Commission.” Tr. 41. The instant case was one of the dockets being inquired about. Tr. 41. Kollar tried to determine where the docket was by searching the office and double-checking boxes. Tr. 41. She eventually “realized” that this case had been sent to Jordan. Tr. 41. Kollar contacted Jordan to inform her that the docket had been mailed to her; however, Jordan responded that she did not have the file. Tr. 41. Kollar then recreated the file by gathering “the citations and the notes the best of my ability” and mailed the recreated file to Jordan. Tr. 41-42.

Kollar estimated that the length of time from being notified regarding the missing case to recreating and mailing such to the Solicitor’s office was three to four days. Tr. 42.

Kollar further testified that her CLR office no longer requests extensions of time for filing civil penalty petitions. Tr. 42. Because of this, her spreadsheet has changed, and the columns were “now gone because we do not have extension letters anymore.” Tr. 42-43. This policy change occurred because of a decrease in dockets due to the creation of and forwarding of cases to the backlog groups. Tr. 43. The CLR office could now handle cases more easily because of the reduced docket size. Tr. 43.

On cross-examination, Kollar testified regarding the actual number of enhanced conferences held in District 2 in 2009. In February, there were three conferences, involving four violations. Tr. 45. In March, there were two conferences, involving three violations. Tr. 45. In April, there were no conferences held. Tr. 45. In May, there were three conferences, involving nine violations. Tr. 45. In June, there were four conferences, involving nine violations. Tr. 45. In July, there were two conferences, involving two violations. Tr. 45. In August, there was one conference, involving five violations. Tr. 46. In September, there were two conferences, involving six violations. Tr. 46. In October, there were fifteen conferences, involving sixty-two violations. Tr. 46. In November, there were seven conferences, involving twenty-one violations. Tr. 46. And, in December, there were three conferences, involving twenty-six violations. Tr. 46; See also Ex. S-1, pgs. 2-10. Kollar testified that in January 2010, there were eleven conferences held, involving twenty violations. Tr. 46; Ex. S-1, pg. 12.

As to the number of referrals to the Solicitor’s office in 2009, Kollar testified that there were no cases referred from March to May 2009, in August 2009, and from November to December 2009. Tr. 47-48. There was one case involving one violation referred in June 2009. Tr. 47. There were two cases with nine violations referred in July 2009, and one case with two violations referred in September 2009. Tr. 47. Ex. S-1, pgs. 1-11. From February 2009 to January 2010, there was a total twelve cases referred to the Solicitor’s office, which Kollar acknowledged was not a “huge” number. Tr. 48-49.

As to Docket No. PENN 2009-585, Kollar testified no conference had been held regarding such during the time the case had been in District 2 from when the Order was issued on November 19, 2008 until the end of January 2010. Tr. 49. She again confirmed that she had sent the case by certified mail to the Regional Solicitor’s office, emailing notice of such. Tr. 49. Although she had checked the return receipt card to assure that it had been received, Kollar did not personally know who the individual was who had signed the receipt. Tr. 48-51; Ex. S-1, pg. 1.

Kollar testified that she had filed a request for extension of time to file a petition for assessment of civil penalty in February 2010 for both Docket No. PENN 2009-585 and 2009-586.[5] Tr. 52. However, she could not remember how many extensions had been filed for the docket(s). Tr. 52. Kollar testified that it took approximately twenty to thirty minutes to physically prepare the petition for assessment for Docket No. PENN 2009-585. Tr. 54. She could not remember from whom the inquiry regarding the missing docket was sent from. Tr. 54.

On redirect examination, Kollar explained that cases come in daily to the CLR office. Tr. 55. After 2010, approximately 550 cases were transferred from District 2 to the Solicitor’s office backlog group. Tr. 56.

II. Edward J. Lewetag

At hearing, Edward J. Lewetag also appeared and testified on behalf of the Secretary. He stated that he worked for MSHA at the Northeast Metal/Nonmetal District Headquarters as a CLR. Tr. 57. He had joined MSHA in December 1992 as a surface and underground coal mine inspector, working in this position until August 2004 when a ventilation specialist job opened, which Lewetag was qualified to perform. Tr. 57-58. He was also awarded a collateral duty accident investigation position while maintaining his coal mine inspector’s position. Tr. 58.

In October 2006, the district conference and litigation representative, Ron Miller, announced his retirement. Tr. 58. Lewetag applied for and received this position. Tr. 58. When Miller retired, there was only one CLR in District 2. Tr. 59. Lewetag stated that he had seen a dramatic increase in contested citations after the 2006 revisions to Part 100 that “substantially increased the amount of fines of the citation, the assessments and the citations.” Tr. 59. By the spring of 2008, he felt that he could no longer handle the workload in District 2 by himself. Tr. 59. He was informed by the district manager that one, and possibly two, more CLR(s) were going to be hired, plus a Secretary. Tr. 59.

Lewetag applied and was approved for the position of supervisor in the enlarged office in March or April of 2008. Tr. 60. His responsibilities as District 2’s Supervisory CLR included supervising the two other CLRs and Kollar, as well as managing case development, including assigning the cases. Tr. 61-62. Because of the “enormous” number of cases that arose within the prior two-year period, Lewetag had to come up with a tracking system to keep up with the incoming dockets. Tr. 61. He also continued his own workload of litigating cases. Tr. 61.

Indicating that he was not a trained attorney, Lewetag testified that twenty dockets containing seventy to eighty citations was his limit. Tr. 61-62. He stated that trying to maintain more than twenty dockets was “too cumbersome” and involved “too much paperwork to keep track of.” Tr. 62. He testified that the first CLR who was hired, though an excellent electrical specialist, did not work out as a representative. Tr. 62. Eventually, two other individuals were retained as CLRS. Tr. 62. Lewetag advised them to start out with five dockets with possibly fifteen to thirty citations, until they became “comfortable with the program.” Tr. 62. The average number of dockets that he and the other two CLRs would work on was probably fifteen. Tr. 63.

With respect to litigating cases and developing a case, Lewetag would speak with the inspectors who issued the citations and check as to whether the issued citation complied with the safety standard cited. Tr. 63. Once familiar with the facts of the case, Lewetag would contact the cited company’s representative, who could be a safety director or attorney, to explore the company’s positions, compare facts and attempt to negotiate an amicable settlement. Tr. 63. While he was uncertain regarding the actual process of deciding which cases were sent to the Solicitor’s office, he believed that cases involving accidents or fatalities were assigned to the appropriate Regional Solicitor by the Office of Assessments. Tr. 63.

If Lewetag or his fellow CLRs were unable to reach a settlement, Lewetag would contact Jordan in the Philadelphia Regional Solicitor’s office and advise her that the docket in question could not be settled. Tr. 64. Lewetag ultimately made the decision to release the case to the Solicitor’s office. Tr. 64.

Lewetag described Kollar as an “excellent” secretary who was “exceedingly organized.” Tr. 64. Kollar helped set up the District 2 office’s docket tracking system, starting with an Excel spreadsheet. Tr. 65. Within two and a half years, the docket had increased from thirty to three hundred cases. Tr. 65. When downloads would come in from MSHA, they would be entered into District 2’s own database so that the forty-five day window to file petitions was kept track of.[6] Tr. 65.

Although unsure of the specific time period, Lewetag indicated that there was a time frame during which the Commission had allowed the District 2 office to file ninety-day extension requests. Tr. 65. The office had to keep track of these extension requests as well. Tr. 65. Lewetag utilized office overtime for the staff to prepare the requests, which were usually to be sent out a week before the forty-five day time period for filing a petition for assessment of civil penalty had expired. Tr. 65.

Lewetag stated that District 2 was sometimes receiving forty to fifty dockets monthly in addition to the five hundred dockets that were already in the office. Tr. 66. There were “literally hundreds of ninety-day extensions requests that (District 2) was applying for.” Tr. 66. The requests for extension were being sent to Chief Judge Lesnick for approval. Tr. 66. When Ron Miller had retired, there were only approximately thirty dockets with about sixty to seventy citations in the office. Tr. 66. By the time Lewetag had become the office supervisor, there were over 2,000 citations and orders. Tr. 66. In Lewetag’s opinion, the “astronomical” increase in caseload had “overwhelmed” the Commission, the companies and the MSHA attorneys as well. Tr. 66. He further testified that the increase in the office caseload leveled off in the spring of 2011, at which time it had become “somewhat more manageable.” Tr. 67. He left the office in October 2011. Tr. 67.

During his stay as the Supervisory CLR, Lewetag only had a maximum of three CLRs, including himself in District 2. Tr. 68. He never had more than one administrator. Tr. 68. He further never had the authority to hire more staff. Tr. 68. He attempted to deal with the increasing caseload by suggesting global settlements. Tr. 68. After participating in his first global settlement,[7] Lewetag approached his district manager about exploring this method with other companies. Tr. 68. Within eight to ten months, nearly three hundred dockets were settled by District 2 CLRs with the assistance of the Philadelphia Regional Solicitor’s office. Tr. 68-69.

As a supervisor, Lewetag was always concerned that, due to a lack of sufficient personnel and the “enormous” caseload, the office would “default” on cases. Tr. 70. Commencing in approximately 2009, office procedures changed to avoid the redundant effect of holding conferences on both the contest and penalty aspects of the citation. Tr. 70-73. At this time, the Commission and MSHA “came up” with health and safety conferences. Tr. 71-72.

To keep up the filing of civil penalty petitions, Lewetag utilized MSHA templates. Tr. 73. After the Part 100 revisions, the option of extensions was offered to the CLRs, which would buy them up to ninety days. Tr. 74. Lewetag estimated that his office filed ninety-day extension requests in forty percent of the dockets. Tr. 74. He had first learned of the extension policy through conference litigation conference calls. Tr. 74-75. Once the requests were authorized by MSHA headquarters, Lewetag had discussions with Kollar as to how to keep track of the extension requests, including the use of an Excel database or spreadsheet. Tr. 75.

The dockets were handled chronologically. Tr. 76. Those dockets that were in the office the longest were the first ones to have an extension request applied for because they were the first ones to be potentially assigned to an ALJ or a prehearing. Tr. 76. Lewetag had directed Kollar to start at the top of the list with the oldest dockets. Tr. 76. However, he did not discuss each individual docket extension request with Kollar. Tr. 76. Though Kollar had excellent organizational skills, she had no background in coal or in the office’s “process legally.” Tr. 76-77. A template, created between the Commission and MSHA, was utilized for the extension requests. Tr. 76.

After Kollar was informed to prepare extension requests on a group of dockets and completed such, she would bring them to Lewetag’s office for his signature. Tr. 77. During his time as Supervisory CLR in District 2, Lewetag would usually contact the major coal operators[8] by phone and request their agreement with the Secretary as to a ninety-day extension on filing a petition for civil penalty. Tr. 77-78. After a few weeks, Lewetag found that he was making thirty to forty phone calls, sometimes to the same operator, within a week’s time. Tr. 78. After a conference call, it was suggested that a blanket approval for extension requests be obtained from the operators’ representatives, who could be an attorney or someone else designated by the company. Tr. 78. Lewetag accordingly proceeded to call or email companies regarding this revised procedure for obtaining approval for extensions. Tr. 78. He could only recall one company that refused to give the blanket approvals.[9] Tr. 78.

Lewetag followed up his communications with the operators with an email so that he could provide some documentation to the Commission if any questions arose. Tr. 80. He specifically named the following operators and representatives that had agreed to the blanket approval procedure: Cumberland and Emerald Coal companies, representated by Hank Moore, Esq.; Rosebud Mining Company, represented by Joseph Yuhas, Esq.; and PBS Coals, Inc., represented by Tom Todd (“Todd”). Tr. 80-81; Ex. S-9, pgs. 1-2. The email sent to Todd was sent on April 6, 2009 at 10:13 A.M., and by return email on April 6, 2009 at 4:51 P.M., Todd agreed to the extensions. Tr. 81; Ex. S-9, pg. 1. Lewetag forwarded the emails to Kollar, and he kept a folder for each company with the “email traffic,” as did Kollar. Tr. 81-82. Lewetag testified that he always had “very professional, very good” interactions with Todd and Respondent’s counsel, Melanie and Vincent Barbera during 2009 and 2010 and had never received any complaints regarding the filing times of civil penalty petitions. Tr. 82.

After a certain period of time, Lewetag testified that MSHA realized that the policy of requesting civil penalty filing time extensions was no longer viable. Tr. 83. At this time, MSHA reached out to the Regional Solicitors’ offices to request assistance for the CLRs. Tr. 83. Eventually, about the time that he was up to requesting his fifth ninety-day extension, Lewetag was told to stop. Tr. 83. A significant portion of District 2 dockets was then transferred to the Philadelphia Regional Solicitor’s office. Tr. 84.

Given that there were only three CLRs in District 2, each of whom was working on possibly twenty dockets at a time, and given the five hundred plus docket workload, Lewetag testified that the “program” would have failed but for utilization of the extension requests. Tr. 84-85. Without the extension requests, the available personnel in District 2 would have been overwhelmed. Tr. 85. On cross-examination, Lewetag agreed with Respondent’s counsel that the only responsible way to handle cases, whether one was an attorney or non-attorney, was to have a good case filing and tracking system. Tr. 86-87. He further agreed that, since memory fades over time, a good case tracking system was necessary. Tr. 88.

Referring to his April 6, 2009 email to Todd, Lewetag agreed that the subject line of the email was entitled “conference extension.” Tr. 89-90; Ex. S-9, pgs. 1-2. He further agreed that the email did not specifically reference ninety-day extensions for filing petitions for civil penalty. Tr. 92. Lewetag asserted, however, that he had verbally explained the blanket extension request process to Todd. Tr. 92-93.

Lewetag also testified that he did not have a conference with Todd on the docket at issue. Tr. 93. After Respondent had filed its notice of contest on June 26, 2009, Lewetag filed his first ninety-day extension request on August 7, 2009, subsequently filing a second ninety-day extension request on November 13, 2009.[10] Tr. 94. Lewetag was uncertain as to how he received the extension order from the Commission, but believed that the Commission had faxed a copy to District 2. Tr. 94.

Lewetag confirmed that any docket sent out of District 2 by Kollar to the Solicitor’s office, including Docket No. PENN 2009-585, would have only been sent with his approval. Tr. 98. As to the date in January 2010 that the five dockets had been transferred out, no petition for the docket at issue had been filed. Tr. 99. Approximately ten to eleven days after this docket had been transferred to the Solicitor’s office, Lewetag filed a third extension request as a “professional courtesy” in order to give the Solicitor’s office more “breathing room” to file the petition. Tr. 100.

On redirect examination, Lewetag testified that the proposed penalty assessment in the instant case was generated in the Office of Assessments in Arlington. Tr. 102. If a case had a scheduled enhanced health and safety conference, the civil penalty petition would not have been filed. Tr. 104. It was Lewetag’s concern that if all of the three hundred plus dockets in District 2 had their petitions for civil penalty filed at the same time, the Commission would have been “overloaded.” Tr. 105. With only three CLRs working, he believed he would have been forced to approach Chief Judge Lesnick to advise him that District 2 could not comply with a significant portion of the prehearing orders issued by the Commission Administrative Law Judges. Tr. 105. He stated that “[i]t would have been the end of the program.” Tr. 105.

Lewetag further testified that the Secretary’s Exhibit 2 reflected only one transfer of dockets in 2010 out of a number of such transfers. Tr. 105-106. Referring to the November 17, 2009 order of Chief Judge Lesnick granting an extension of time to file petitions for assessment of civil penalty in Docket Nos. PENN 2009-585 and PENN 2009-586, Lewetag notes multiple other dockets included in the order. Tr. 107; Ex. S-8, pg. 1.

On re-cross examination, Lewetag again asserted that District 2 could not have timely filed all of the petitions for assessment with only three CLRs without submitting extension of time requests. Tr. 109-110. He conceded that he did not specifically know how the Commission and its administrative law judges would have handled the situation if District 2 had filed all of the petitions at once. Tr. 111.

III. Thomas Todd

At hearing, Thomas Todd appeared and testified on behalf of Respondent. Todd has been employed by Respondent for four years, commencing in January 2009. Tr. 117-118. Todd has a Bachelor of Science degree in Mining Engineering from the University of Pittsburgh. Tr. 118. After graduation, he worked as a blasting consultant, then as a service mine consultant. Tr. 118. He worked for MSHA for twenty-one years, commencing in 1987. Tr. 118. He started as a general engineer and later became an inspector. Tr. 118. Throughout his time with MSHA, he was an accident investigator, mine rescue member, ventilation specialist, health specialist, assistant district manager, staff assistant and field office manager. Tr. 118.

When Todd began at PBS, he had the position of vice president in charge of safety. Tr. 119. As such, his duties included: oversight of all safety programs at underground mines, surface mines and cleaning plants; oversight of citations and orders issued; consideration of whether citations and orders should be paid or contested and tracking such through the system. Tr. 119. Todd testified that when he started with PBS, he was responsible for approximately eighty dockets with multiple citations. Tr. 119. He oversaw the contests of all dockets, including cases which were vacated, settled or pursued to decision. Tr. 119-120. He indicated that the number of citations issued and fines assessed at PBS had remained consistent; although, there might have been a slight increase in 2009. Tr. 120. There had been a steady inflow of citations with no increase in staff. Tr. 121.

Todd testified that, after the proposed assessment for Order No. 7021450 was filed on June 9, 2009, he never had any negotiations with Lewetag or any other CLR regarding this particular Order. Tr. 122. However, he did have negotiations with Lewetag and other CLRs that led to the successful resolution of other citations. Tr. 122.

Referring to the email exchange between himself and Lewetag, Todd stated that he believed that the email extension request was referring only to cases that he and Lewetag were having conferences on. Tr. 123; Ex. S-9. Todd had not intended to agree to blanket extensions on the filing of civil penalty petitions on non-conferenced cases, including the Order at issue. Tr. 123. He further testified that he did not know that the case at issue had been transferred to the Solicitor’s office. Tr. 124. He never agreed to any kind of “unlimited extension” on the case. Tr. 125. He further stated that he did not agree to any extension of time for a filing the Petition from May 12, 2011 to the actual filing date of November 9, 2011. Tr. 125.

Referring to the cover letter from the Secretary informing Respondent that the Petition had been filed in this docket, Todd confirmed that the date on the cover letter erroneously stated November 9, 2010, rather than November 9, 2011.[11] Tr. 126; Ex. R-4. He further confirmed that Respondent had actually filed a timely contest, despite the Secretary’s wording in the Petition and motion for leave to file a late petition that the Order at issue may not have been, in fact, as yet contested. Tr. 128-129; Ex. R-4.

Todd testified that four of Respondent’s employees who were witnesses to facts relevant to the case where no longer employed by Respondent: John Matsko (“Matsko”), Larry Heist (“Heist”), Michael Merringer (“Merringer”) and Michael Reilly (“Reilly”). Matsko was safety director of the surface mines in 2008 when the Order was issued. Tr. 130. He had reportedly retired due to “failing health.” Tr. 130-131. Todd indicated that “sometimes (Matsko) can get around and sometimes he can’t.” Tr. 131. Heist was supervisor of the miner that was involved in the Order and supervised the mechanics and welders. Tr. 131. He had gone on short-term disability due to his failing health and, eventually, had left employment due to such. Tr. 131. He had difficulty coming out of his house on a regular basis. Tr. 131. Merringer was a mechanic for Respondent, working very near the scene where the accident took place; and Reilly was also a mechanic employed by Respondent at the time that the Order was issued. Tr. 132. Todd also expressed concern that the passage of time might affect the memories of those who would testify in this case.[12] Tr. 132-133.

On cross-examination, Todd conceded that he had not identified Reilly as missing fact witness in a prior affidavit dated November 12, 2012. Tr. 133-134; Ex. R-B. He further conceded that, as of January 11, 2013, the accident victim, Chad Younkin, was available to testify. Tr. 135. Finally, Todd admitted that Matsko and Heist had contributed to multiple answers in Respondent’s reply to the Secretary’s discovery request. Tr. 138. Though not knowing the exact number, Todd admitted that Respondent had not objected to multiple requests by the Secretary in 2009 and 2010 to extend the deadlines for filing petitions for assessment of civil penalty. Tr. 139.

Referring to Docket No. PENN 2009-586, also assessment control number 187277, Todd confirmed that the decision approving settlement had not been issued until May 18, 2011. He agreed that, in response to the Secretary’s August 7, 2009 request for extension of time to file the petition for assessment of civil penalty for Docket Nos. PENN 2009-585 and PENN 2009-586, Chief Judge Lesnick had granted such request on October 8, 2009. Tr. 143-144; See also Ex. R-A, pgs. 15-17. In response to a second request for a ninety-day extension filed on November 13, 2009, Todd agreed that Chief Judge Lesnick had granted the extension on November 13, 2009. Tr. 144-145; Ex. R-A, pgs. 13-14. He also agreed that there were some violations dating to the time of this matter that still had not been resolved. Tr. 150-151.

In response to questioning by the undersigned, Todd testified that he actually had not spoken with the witnesses, Matsko, Heist, Merringer or Reilly, regarding the accident and Order at issue. Tr. 151-153.

IV. Donald R. Foster

Donald R. Foster appeared and testified as a rebuttal witness on behalf of the Secretary. Foster had worked for MSHA in District 2 since June 2006. Tr. 156. He had been hired as an electrical specialist and worked as such until 2011. Tr. 156. He is currently the staff assistant for the district manager. Tr. 156.

Foster testified that he had investigated the accident on November 24, 2008. Tr. 157. This investigation had led to his issuance of Order No. 7021450. Tr. 157. He had interviewed Respondent’s employees Matsko, David Flick, Butch Demich, Merringer, Reilly and Heist. Tr. 157-158. He also had spoken with Mr. Barbera on that day. Tr. 158.

V. John Stepanic

John Stepanic (“Stepanic”) also appeared and testified as a rebuttal witness on behalf of the Secretary. He testified that he had worked as a supervisory special investigator for MSHA in District 2. Tr. 160. Stepanic had contacted Merringer to find out if Merringer was available to attend a trial within the next six months. Tr. 160-161. According to Stepanic, Merringer indicated that he would have “no problem” showing up for trial so long as he was given ample notice. Tr. 161.

FINDING OF FACT AND CONCLUSIONS OF LAW

I. Respondent’s argument that it has no burden to establish prejudice if the Secretary fails to demonstrate adequate cause is accepted by the undersigned as a correct interpretation of the Commission’s ruling in Long Branch II, supra.

At hearing and in its post-hearing memoranda, Respondent has argued that in the absence of a finding of adequate cause, it would have no burden to establish prejudice and that, accordingly, this Court would not be required to balance the public interest in the enforcement of the Act and the harm to each party. Tr. 20-21; See also PBS Coals, Inc.’s Closing Statement. The undersigned finds that Respondent’s position is the proper interpretation of Long Branch II.

Footnote 12 of Long Branch II states:

While the Salt Lake formulation may operate as a two-part test in some cases, it is more precisely understood as a requirement that each party bear the burden of production on the respective issues of adequate cause and prejudice, with the judge required to balance the public interest and the harm to each party if both adequate case and prejudice are shown. Thus, if the Secretary fails to demonstrate adequate cause, the operator has no burden to establish prejudice, and there is no “two-part test.” Similarly, if both are established, the “two-part test” does not resolve the issue in and of itself, because the judge would be required to resolve the tension among competing interests. Our decision today, like those in Medicine Bow and Rhone-Poulenc reasserts, and is consistent with, this framework constructed in Salt Lake. (Emphasis added).

34 FMSHRC at 1991 (Aug. 2012).

Contrary to the Secretary’s assertion that, even in the absence of a finding of adequate cause for late filing, the operator would still have a burden to establish prejudice, the Commission’s express language in Long Branch II clearly and plainly establishes no such burden. Accordingly, if the Secretary had failed to establish adequate cause for its untimely filing in the case sub judice, no burden would be imposed on Respondent to establish prejudice. However, as discussed infra, this Court does find that adequate cause has been established by the Secretary, thus rendering this issue of case law construction essentially moot.

II. The Secretary has established adequate cause for his late filing.

In Long Branch II, the Commission essentially reaffirmed its decision in Salt Lake that the Secretary must establish “adequate cause” for delayed filing of petitions for assessment of civil penalty. The Commission states, “[i]n order to help strike a proper balance and to insure (sic) that the Secretary does not ignore Section 105(d)’s injunction to act ‘immediately,’ we hold that if the Secretary does seek permission to file late, he must predicate his request upon adequate cause.” Id., 34 FMSHRC at 1990 (citing Salt Lake, 3 FMSHRC at 1716).

In assessing whether the Secretary has established “adequate cause,” the Commission further set for the following considerations in Long Branch II:

In sum, pursuant to Salt Lake, the Secretary may not, on a “mere caprice,” ignore the Commission’s procedural rule regarding deadlines for filing penalty petitions. At the same time, we must adhere to the basic administrative law principle that, where the government can be said to have acted reasonably – i.e., not on a whim or in dereliction of its duties to uphold the law – an overarching interest in prompt and efficient enforcement precludes the dismissal of substantive proceedings on procedural grounds in the absence of prejudice. Id. Thus, regardless of how important procedural regularity may be, it is subservient to the substantive purpose of the Mine Act in protecting miners’ health and safety. As stated in Salt Lake, “[w]e do not mean to intimate that insuring procedural fairness is not an important concern under the Mine Act. However effectuation of the Mine Act’s substantive scheme, in furtherance of the public interest, is more crucial.” Id. We therefore balance concerns for procedural regularity against the severe impact of a dismissal on the Mine Act’s penalty scheme.

In order to achieve this balance, we clarify that “adequate cause” may be found to exist where the Secretary provides a non-frivolous explanation for the delay. The Secretary’s excuse may not be facially implausible, and should be supported by evidence sufficient to establish that the delay did not result from “mere caprice” or through willful delay, intentional misconduct, or bad faith. This ensures that the Secretary is upholding her commitment to the public interest, while recognizing that dedicated public servants may stumble in the performance of their duties.

Id., 34 FMSHRC at 1991.

Here, the Secretary presented testimony that the Department of Labor had faced a substantial increase in civil penalty proceedings during the time period that the instant Petition was due. Tr. 59. Supervisory CLR Lewetag testified regarding the “dramatically” increasing caseload in District 2, and the exponential growth in dockets from 30 involving 60-70 citations and orders to 300-500 dockets involving 2,000 citations and orders. Tr. 59, 65-66. Lewetag further described the various measures taken by MSHA District 2 to deal with the burgeoning caseload, including the hiring of two additional CLRs, the hiring of Kollar as an administrative assistant, and the use of (blanket) extension requests. Tr. 26, 62, 78.

Given the District 2 caseload and his multiple conference, litigation, administrative and supervisory duties outlined in his testimony, supra, Lewetag was clearly a busy individual with multiple responsibilities during the time period that the instant Petition was due to be filed. Likewise, Kollar, the only administrative assistant in District 2, would have had a demanding workday during the same period. Further, the declaration of Jordan, MSHA Regional Counsel in the Philadelphia Solicitor’s office, reasonably described the time period during which the case file was possibly lost in transit or at the Solicitor’s office as one involving a large volume of incoming cases. Ex. S-7.

The undersigned accepts the arguments advanced by Respondent to the extent that the Secretary’s explanation regarding the missing case file was less than compelling. However, Long Branch II only requires that the Secretary’s excuse “not be facially implausible.” Given the large volume of cases coming into the Regional Solicitor’s office – not only from MSHA, but also from FLSA, OSHA, Black Lung and ERISA – the undersigned finds it at least plausible that one case file “could have been lost in the shuffle.” As the Commission recognized in Long Branch II, “[…] dedicated public servants may stumble in the performance of their duties.” Id. at 1991. Further, the undersigned notes that the Commission presumes that the Secretary’s agents generally act in good faith to uphold the timely enforcement of penalties under the Act. Id. at 1991, Footnote 11.

The undersigned accepts Respondent’s arguments in its post-hearing brief to the extent that the Secretary could have presented more detailed evidence as to the Solicitor’s office’s procedures to ensure that cases are properly tracked and deadlines followed once files are transferred into the Regional office. See Respondent’s Post-Hearing Brief, pgs. 2-3. If the burden of proof were beyond a reasonable doubt, the Secretary would have failed to carry such in this matter. Indeed, as noted infra, if this case involved a minor technical violation, the minimal (albeit legally sufficient) showing of adequate cause by the Secretary would have been another factor favoring the granting of dismissal for untimely filing. However, not withstanding Respondent’s arguments, the undersigned found nothing in the documentary and testimonial evidence presented to suggest that the late filing of the Petition and/or loss of the case file was due to “mere caprice,[13] willful delay, intentional misconduct or bad faith” on the part of any individual in MSHA District 2 and/or the Philadelphia Regional Solicitor’s office.

The undersigned recognizes Respondent’s frustration over the untimeliness of the Petition. Moreover, he accepts that Respondent may have not, in fact, consented to the extensions of time filed by MSHA and the Solicitor and that the wording of Lewetag’s above discussed email may have been confusing and poorly phrased. However, the undersigned finds that any miscommunication and resultant misunderstanding regarding MSHA or the Solicitor’s requests for extension of time were not because of any bad faith scheme to willfully delay the requisite filing.

Similarly, the undersigned accepts that Respondent also had a large caseload during the time period in question and may have had a better case management and/or case tracking system than District2 and/or the Solicitor’s office. However, the issue is not whether Respondent may have been able to handle a large docket in 2009 and 2010 without resorting to multiple requests for extensions of time to file pleadings and/or without experiencing loss or misplacement of a case file.

The issue ultimately is whether the Secretary offered a non-frivolous explanation for the late filing. There certainly may have been more efficient and effective ways of dealing with the backlog and/or managing and tracking cases than those utilized by MSHA and the Solicitor’s office. However, the undersigned found the Secretary’s excuse to be facially plausible. Therefore, the undersigned finds that the Secretary has managed to hurdle – albeit a low bar – the requirement of establishing adequate cause in the within matter.

III. Respondent failed to establish actual prejudice.

In Long Branch II, the Commission emphasized that “mere allegations of potential prejudice or inherent prejudice should be rejected.” Id. at 1991. The Commission specifically rejected the ALJ’s suggestion in Long Branch that “a danger of prejudice” due to the Secretary’s untimely filings would be sufficient proof. Id. at 1992(citing Long Branch Energy, 33 FMSHRC 1960, 1976 (Aug. 2011)(ALJ)(“Long Branch I”)).

In the case sub judice, Respondent indicated that it would be prejudiced because of the untimely filing due to the unavailability of four witnesses, listed above. No affidavits or written statements or declarations, however, were offered by Respondent from any of the witnesses to support this contention. Nor were there any medical reports from any treating health provider offered into evidence to establish unavailability. The only testimony presented was from Vice President of Safety Todd who – upon questioning from the undersigned – admitted that he had not actually spoken to any of the witnesses in question. Tr. 152-153. Offering, at best, hearsay on hearsay[14] testimony, Todd stated that Heist, Younkin’s foreman at the time of the accident, could not attend a hearing “because of his health.” Tr. 131. Todd did not describe the specific nature of Heist’s underlying medical condition and/or why the symptoms associated with such would prevent travel and/or testimony. Likewise, as to Matsko, Respondent’s safety director of surface mines at the time of the accident, Todd only offered that “one of the reasons” Matsko retired was due to his health. Tr. 130-131. Again, no further testimony or evidence was offered regarding Matsko’s alleged inability to attend a hearing. As to Merringer and Reilly, the witnesses to the accident, Todd only indicated that both had left PBS Coals’ employ and that, consequently, “Respondent no longer had the ability as an employer to required them to come to a hearing.” Tr. 132.

The undersigned has carefully considered the Commission’s discussion in Long Branch II regarding the proof required to establish prejudice. While not fully articulating what must be demonstrated specifically by a mine operator, the Commission did observe that there must be more than merely a “danger of prejudice,” and the prejudice must be “real” or “substantial.”[15] In many areas of the law, the “real” and “substantial” nature of the prejudice cause by delay is patent. If an accused cannot post bail and the State is dilatory in bringing his case to trial, the actual prejudice of incarceration is obvious. Hence, speedy trial rules calling for dismissal of charges or nominal bond.

In the context of the Mine Act cases, actual prejudice is not always so clear. When critical witnesses are still available for trial and/or evidentiary deposition for use at trial, this Court would, absent very exceptional circumstances, not find “actual,” “real” or “substantial” prejudice. Given the foregoing, the undersigned found Respondent’s proferred evidence regarding the unavailability of the four witnesses to be too thin ice upon which to base a finding of “substantial prejudice.” Considering the contradictory evidence presented by the Secretary that Merringer was, in fact, willing to attend a hearing if given adequate notice[16] and that Reilly had only left Respondent’s employ in December 2012, the undersigned finds that Respondent did not establish actual prejudice due to the late filing.

IV. Balancing the public interest and harm to each party, the within Petition should not be dismissed for untimely filing.

As noted supra, the Commission in Long Branch II held that, generally, each party bears the burden of production on the issues of adequate cause and prejudice with the judge required to balance the public interest and the harm to each party. If both burdens are carried, the judge would be required to resolve the tension among competing interests. Id. at 1996. Even assuming, arguendo, that Respondent had sufficiently established actual prejudice, the undersigned still concludes that a balancing of the public interest and harm to each party would not warrant a dismissal on the basis of untimely filing.

In its closing statement, Respondent rightfully points out that the length of delay in filing would be a critical factor in determining whether dismissal is warranted. Moreover, the undersigned agrees that the length of delay in filing the instant Petition was disturbingly protracted: 270 days, even granting that all three extensions were properly obtained; and additional one and a half years, even granting the case file was excusably lost. The undersigned further would accept as a general proposition that the longer the delay, the stronger the argument for dismissal.[17] In his original opinion in Long Branch I, respected jurist, ALJ McCarthy, compellingly set forth the harms caused by lengthy filing delays.[18] Id. at 1972-1973 (ALJ).

However, the undersigned specifically rejects Respondent’s argument that length of delay, standing alone, may dictate dismissal. The length of delay, albeit a critical factor, is only one factor in any proper balancing test of the competing interests discussed by Long Branch II. The undersigned observes that other factors must be considered, including: the type of violation involved, whether it was a minor or technical breach or a major violation of a mandatory health or safety standard, whether there was an accident involved, whether death or injury were involved, and whether the violation was designated as significant and substantial (“S&S”) or an unwarrantable failure.

Given the exceedingly protracted delay in the instant matter, if only a minor violation had been involved with no accident or injury, this Court may have concluded that the length of delay would have outweighed other considerations and would probably have ruled in Respondent’s favor. However, the within matter stems from the investigation of an accident in which a miner, Chad Younkin, was seriously injured while operating a truck-mounted boom. The failure to provide adequate training under 30 CFR § 48.27(a)(3), if proven to be true, would constitute a serious mandatory health and safety violation. Given the issuance of a Section 104(g)(1) order indicating a high degree of negligence and a highly likely risk of fatality, the determination by the investigation of S&S, the public interest embodied in the Mine Act of protecting miners from unsafe conditions and practices would outweigh the procedural fairness to the operator in allowing this case to go forward.

In reaching this decision, the undersigned has again considered the guidance of the Commission in Long Branch II in balancing the competing interests discussed infra. The Commission noted:

Distilled to its essence…Salt Lake identifies and prioritizes the interests implicated…and provides guidance for determining how judges should proceed when those interests collide. At is core, the decision reflects an “overriding concern with enforcement”…the Senate Committee did not “expect the failure to propose a penalty with promptness shall vitiate any proposed proceeding…”

Although we recognized the value of fairness inherent in prompt filing of penalty petitions…Commission Rule 28(a)’s requirement that a penalty petition shall be filed within 45 days, while effectively ensuring the prompt filing of a penalty petition, is not a statute of limitations.

Id. at 1989(emphasis added).

In balancing the consideration of procedural fairness to Respondent against the severe impact of dismissal of the penalty proposed upon the substantive scheme of the statute, the undersigned again notes the somewhat speculative nature of the mine operator’s actual prejudice in the instant case. Chad Younkin, the injured miner who operated the truck-mounted boom crane, is still available for trial at which he could be subject to vigorous examination and cross-examination as to the issue of this training or lack thereof. As discussed supra, the record is unclear whether certain of the witnesses identified by Respondent as unavailable are, in fact, unavailable for trial and/or deposition for use at trial. Further, the record is also unclear whether these purported witnesses, even if unavailable, would in fact have given testimony necessarily favorable to Respondent.

CONCLUSION

Given the specific circumstances of the within matter, the undersigned accordingly DENIES Respondent’s request for dismissal on the basis of untimely filing.[19] It is ORDERED that this case PROCEED for hearing on the underlying merits.

/s/ John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Joshua T. Shaw, Esq., and Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106

Vincent J. Barbera, Esq., and Melanie R. Barbera, Esq., Barbera, Clapper, Beener, Rullo & Melvin, LLP, 146 West Main Street, P.O. Box 775, Somerset, PA 15501

[1] “Ex.” corresponds to trial exhibits. Respondent’s exhibits are notated as “R” followed by the exhibit number. The Secretary’s are labeled as “S” followed by the exhibit number. Finally, “Tr.” followed by numbers refers to the hearing transcript.

[2] 29 CFR § 2708(c), “Computation of Time” provides, in pertinent part, that is a due date falls on Saturday, Sunday, federal holiday, or other date on which the Commission’s offices are not open, the due date shall be the next day which is not one of the aforementioned days.

[3] As shall be discussed infra, the Secretary indicates that the case file was inadvertently lost for a time period prior to its filing.

[4] Docket No. 585 appears interposed in the transcript as 558.

[5] There was some question raised as to whether the filing for Docket No. PENN 2009-585 was inadvertent. Tr. 52.

[6] See Commission Rule 2700.28(a) providing that “within 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 CFR § 2700.28(a).

[7] Lewetag was uncertain as to the actual starting date of the global settlements, which may have been 2008. See Tr. 70.

[8] Lewetag indicated that five or six coal companies generated sixty to seventy percent of all of the dockets in District 2. Tr. 77.

[9] As best as Lewetag could recollect, only a small operator, Dana Mining Company (not Respondent), had refused the blanket extension request proposal. Tr. 79.

[10] There was originally some question as to whether the November 13, 2009 request had been filed. The parties only confirmed the existence of such shortly before the hearing. Tr. 95.

[11] The Petition itself was dated November 9, 2011.

[12] The undersigned is reminded of William Gibson’s observation, “Time moves in one direction, memory in another.”

[13] See also definition of “caprice” in Merriam-Webster dictionary: “A sudden, impulsive, and seemingly unmotivated motion or action.” Again, the undersigned finds that the record, in toto, does not support a finding that MSHA or DOL officials had acted on arbitrary, impulsive whims in this matter.

[14] Todd testified that he had spoken with Younkin, who indicated that he had received training from Heist. Tr. 152. As to the other witnesses, he had reviewed answers to interrogatories and requests for admissions, as well as speaking to Respondent’s counsel regarding such. Tr. 153.

[15] See Long Branch at 1993, Footnote 13:

These cases include Alumbaugh Coal, 635 F.2d at 1383-84 (“Unless required by law, this court will not set aside a Board decision in the absence of a showing that the alleged procedural defect substantially prejudiced the rights of the complaining party.”)(emphasis added); Jensen Constr. Co. v. OSHRC, 597 F.2d 246, 247-48 (10^th Cir. 1979)(“absent a more specific showing that [the employer] suffered real prejudice due to the delay of some 28 days [in filing the complaint], and in light of the potentially serious nature of the offenses…the Judge did not abuse his discretion in refusing to dismiss the complaint.”)(emphasis added); and Todd Shipyards Corp. v. Sec’y of Labor, 566 F.2d 1327, 1330 (9^th Cir. 1997)(recognizing merit in OSHRC rule that delay in issuance of citation to employer will only result in vacature of citation “if delay in issuance has result in demonstrable prejudice to the employer.”)(emphasis added).

[16] See testimony of John Stepanic that Merringer had reportedly stated that he “had no problem showing up for trial.” Tr. 160.

[17] The undersigned is reminded of the old Latin proverb – “Tardinas et procrastinatio odiosa est” – Delay in the law is hateful.

[18] ALJ McCarthy warned of the deleterious effect on prompt and expeditious resolution of civil penalty petitions, as well as the languishing of the adjudicatory process creating a backlog at each level of review. Id. Importantly, he noted that reason for delay was within the reasonable control of MSHA, which could have more effectively allocated resources as the backlog of contested citations grew. Id.

[19] The Commission’s denial of a motion to dismiss is not a final order subject to judicial review. See Webster County Coal, LLC, No. 12-1388 (D.C. Cir. Jan. 8, 2013)(Unplublished).

Appearances:	Joshua T. Shaw, Esq., and Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Department of Labor, for the Secretary of Labor Vincent J. Barbera, Esq., and Melanie R. Barbera, Esq., Barbera, Clapper, Beener, Rullo & Melvin, LLP, for Respondent
Before:	Judge Lewis