FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 29, 2012

ORDER DENYING MOTIONS FOR

JUDGMENT ON THE PLEADINGS

Before:            Judge McCarthy

            This case is before me upon two petitions for assessment of civil penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). After initiating an investigation into alleged section 110(c) violations, the Secretary proposed civil penalties against Willie Rowe as a result of the violations alleged in Order Nos. 611840, 6118442, and 6118444 and a civil penalty against Christian Miller as a result of the violation alleged in Order No. 6118444. The Respondents have submitted identical Motions for Judgment on the Pleadings alleging that the Secretary’s petitions were insufficient to state a claim for relief under Commission Procedural Rule 28 and Federal Rules of Civil Procedure Rule 8(a)(2). Respondents contend that the petitions do not identify any facts supporting the rationale for imposing the civil penalties or tending to show that South Carolina Minerals’ alleged agents knowingly authorized, ordered, or carried out any violations. Respondents move to dismiss the above-captioned claims with prejudice on the basis of the insufficiency of the pleadings.

            According to Commission Rule 28, a penalty petition must contain a list of the alleged violations and a short and plain statement of supporting reasons based on the criteria for penalty assessment set forth in section 110(i) of the Act. In addition, a copy of the citations or orders at issue must be attached to the penalty petition. In most cases, the citation, assessment sheet, and the boilerplate petition together contain enough information to satisfy the minimum pleading requirements under the Commission’s rules. See Clapp v. Cordero Mining, 2011 WL 7268153, 53 (2011) (ALJ McCarthy); Asarco, Inc., 23 FMSHRC 779 (2011) (ALJ Manning). 

            Between the citations, the Special Assessment Narrative Form, and the petition itself, the Secretary has met the minimal pleading requirements. The Special Assessment Narrative Form sets forth information regarding how the Secretary assessed each penalty factor and how each factor affected the proposed penalty assessment. The citations or orders explain the conditions and practices that lead to each citation and the conclusions the inspector made as to gravity and negligence. They also attribute the alleged knowing conduct to the named agent of the Respondent operator.

            In these cases, however, the Respondents claim that they have not received copies of the citations associated with the section 110(c) allegations. The Secretary states that the orders were physically served on Rowe and that both Respondents were given copies of the citations at the beginning of the section 110(c) investigation. The Secretary also states that the citations were attached to the petitions for civil penalty as required by Rule 28. In reviewing the record, it appears that the Secretary did not send the citations with the petitions filed with the Commission, and thus it is likely that the Secretary also failed to include the orders with the copy of the petitions sent to the Respondents.

            ALJs have shown considerable leniency when the Secretary fails to include copies of the citations with the petition for civil penalty by allowing the Secretary to amend the pleadings to perfect the petition. See, e.g., Quapaw Company, 19 FMSHRC 1927 (1997) (ALJ Merlin); Georges Colliers, Inc., 20 FMSHRC 95 (1998) (ALJ Merlin). The Commission has no specific rule regarding amendment of pleadings. Commission Rule 29 C.F.R § 2700.1(b), however, states that “[o]n any procedural question not regulated by the Act, these Procedural Rules, or the Administrative Procedures Act . . . the Commission and its judges shall be guided so far as practicable by the Federal Rules of Civil Procedure.”

            Federal Rule of Civil Procedure 15(a) governs amendment of pleadings. Rule 15(a)(2) states that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” The Commission has applied a liberal application of Rule 15(a), explaining that “amendments are to be liberally granted unless the moving party has been guilty of bad faith, has acted for the purpose of delay, or where the trial of the issue will be unduly delayed.” See Wyoming Fuel, 14 FMSHRC 1282, 1290 (Aug. 1992), citing Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990).

            Dismissal without a finding on the merits is a harsh outcome, and one that must be judiciously applied. Long Branch Energy, 33 FMSHRC 1960, 1977 n.18 (2011) (ALJ McCarthy). While the Secretary’s oversight is regrettable, there is no evidence of bad faith or intent to delay on the part of the Secretary. In response to the Respondent’s request, the Secretary amended her petition by providing an electronic copy of the orders and Special

Assessment Narrative Forms on May 22, 2012, well in advance of the hearing. Absent any show of prejudice to the Respondents, the Motions for Judgement on the Pleadings are DENIED.