FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

FAX: 202-434-9949

June 7, 2012

ORDER DENYING RESPONDENT’S MOTION TO DISMISS

WITHOUT PREJUDICE

            This case is before me on a complaint of discrimination filed by Buddy Rooks pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3). Respondent filed a Motion to Dismiss the complaint on grounds that it was not timely filed with the Commission and because it failed to state a claim upon which relief could be granted. Complainant has responded to two Orders to Show Cause, supplying information responsive to the orders and addressing arguments raised by Respondent. Respondent has filed a reply to Complainant’s submissions renewing its arguments. For the reasons that follow, the motion is denied without prejudice.

            The “timeliness” issue arose because Complainant allegedly did not file his discrimination complaint (what he referred to as his “appeal” of MSHA’s denial of his complaint) with the Commission within 30 days of his receipt of MSHA’s October 18, 2011, letter advising that it had determined that no discrimination had occurred. The complaint was filed with the Commission on or about January 5, 2012, which Respondent argues was 50 days following the 30-day deadline established in the Act. Complainant has offered a number of explanations for the timing of the filing of his complaint, most of which do not address specific dates. However, his response to the second order to show cause includes the following statement:

I am enclosing the letter that MSHA sent me with no date and doesn’t say anything about a time limit, except for to appeal it within 30 days, which I did.”

            Respondent’s original argument was based upon the expiration of time from the mailing of the Secretary’s letter, not its receipt by Complainant. A May 2, 2012, letter from the undersigned Administrative Law Judge to Respondent’s counsel, forwarding a copy of Complainant’s response to the Second Order to Show Cause, noted the following on the timeliness issue:

I will advise that I am presently inclined to deny the motion without prejudice. The materials supplied in response to the orders appear to satisfy any deficiencies in the complaint, and the pertinent facts relevant to the timeliness issue are not clear at this time. Mr. Rooks asserts that he filed his complaint with the Commission within 30 days of receipt of the MSHA letter denying his claim. The 30-day period commenced with his receipt of the letter, not the date that it was mailed. He apparently had moved at some point, and it is unclear when he actually received his, apparently undated, copy of the letter.

I believe that the facts regarding Mr. Rooks receipt of the letter, and what steps he took to pursue his complaint with the Commission could most likely be better developed through discovery or at a hearing on the merits of the complaint.

            Respondent’s reply to Complainant’s submissions focuses on the question of when Complainant was notified of the Secretary’s determination, but recognizes that critical facts regarding Complainant’s relocation (and when he received notice) remain absent. Respondent attempts to side step the absence of critical factual information by arguing that Complainant was responsible for duly notifying MSHA, the Commission, and all parties to this action of any change in address. The source of this obligation was not identified. Commission rules certainly require that the Commission and parties be promptly notified of any “change in contact information” of a party’s representative. However, the critical time frame at issue here preceded the initiation of Complainant’s action before the Commission. Absent critical facts, Respondent argues that the available materials “suggest” that Complainant should have received the MSHA letter “in the normal course at his [former] address without any unusual delay.” Resp. Reply at 2-3.

            I decline Respondent’s invitation to dismiss the complaint based upon a suggestion, particularly one as speculative as posed here. The materials submitted thus far, including Complainant’s responses to the show cause orders, leave a host of possibly relevant questions unanswered. However, Complainant squarely asserted that he complied with the 30-day time limit. That assertion cannot be rejected based upon the suggestion urged by Respondent. Absent establishment that there was, in fact, non-compliance with the 30-day filing requirement and the period during which delay occurred, it is impossible to determine whether there was adequate cause for any delay, or whether Respondent suffered any legally cognizable prejudice as a result.

ORDER

            Based upon the foregoing, Respondent’s Motion to Dismiss is DENIED, without prejudice.

            It is FURTHER ORDERED that the parties shall confer and attempt to agree on a schedule for further litigation of this case, including any contemplated discovery, further motions, and proposed hearing date(s) and location. If agreement is reached on a proposed schedule it shall be filed on or before June 25, 2012. If agreement is not reached, the parties shall submit their proposed schedules on or before June 27, 2012.

NOTICE TO COMPLAINANT ROOKS

            Complainant is strongly urged to seek counsel to represent him in this matter. Civil litigation in general, and discrimination proceedings in particular, are complex legal matters. While, as a party to this action, you may represent yourself, be advised that non-attorney representatives are obligated to comply with all applicable rules of the Commission, other regulations, and laws applicable to these proceedings.

            The Federal Mine Safety and Health Review Commission, which is an independent agency completely separate from the Department of Labor, maintains a website (www.fmshrc.gov) where essential and helpful information can be found including the Commission’s Procedural Rules, Decisions by the Commission and its Administrative Law Judges, and links to other useful sites.

            If you continue to represent yourself, you must familiarize yourself with your basic obligations as a litigant before the Commission, e.g., all submissions to the Commission must be dated; bear the docket number of this case and the name of the assigned judge; be signed by the party or party’s representative and state the filing party’s name, address, phone number(s), fax number (if applicable) and e-mail address (if available); and a certification that a copy of the submission was served (by first class mail, fax, or other permissible means) on the representative of the other party. These obligations can be found in the Commission’s procedural rules, which are available on the Commission’s web site, and can be found at 29 Code of Federal Regulations, Part 2700.

            You have failed to comply with many of these basic requirements in your responses to the show cause orders, despite clear instructions to do so. Henceforth any submissions that fail to comply with Commission requirements in any material way will not be accepted, and will be returned.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

Senior Administrative Law Judge

                                                                        202-434-9981

                                                                        Mzielinski@fmshrc.gov

Distribution:

Buddy Rooks, 105 E. Chandler St., Carrollton, GA 30117

Dinah L. Choi, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 1909 K Street, N.W., Suite 1000, Washington, D.C. 20006