FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N. W. Suite 9500

WASHINGTON, DC20001-2021

Telephone: (20) 434-9933

November 15, 2011

ORDER GRANTING SECRETARY’S MOTION TO AMEND HER PETITION FOR THE ASSESSMENT OF CIVIL PENALTY AND DENYING RESPONDENT’S COUNTER-MOTION TO DISMISS

            The Secretary filed a Motion to amend her petition for the assessment of a civil penalty in the above-captioned matter. Thereafter, Elk Run Coal, through Counsel filed its Objection and Response to the Motion and a Counter-Motion to Dismiss. The Secretary then filed a Reply to Respondent’s filing and Respondent, in turn, filed a Response. The Court fully considered all the submissions and rules that the Secretary’s Motion is RANTED and Respondent’s Counter-Motion is DENIED.

            The Court will not engage in a lengthy discussion of the Respondent’s arguments in its Response to the Secretary’s Motion to amend the petition, nor in its Counter-Motion to Dismiss, nor with its Response, except to state that the Respondent’s arguments were read and considered and thereupon found to be completely without any merit. Rather than re-invent the wheel, the Court incorporates by reference the Secretary’s Reply as an Appendix to this decision. Further comment from the Court is not warranted.

SO ORDERED.

                                                                                     /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

APPENDIX

UNITED STATES OF AMERICA

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

WASHINGTON, DC

SECRETARY OF LABOR’S REPLY TO ELK RUN COAL COMPANY, INC.’S OBJECTION AND RESPONSE TO THE SECRETARY’S MOTION TO AMEND THE PETITION AND COUNTER-MOTION TO DISMISS

The Secretary of Labor (“Secretary”), by the undersigned attorney, hereby opposes Elk Run Coal Company’s (“Respondent”) Objection and Response to the Secretary’s Motion to Amend the Petition and Counter-Motion to Dismiss in the above-captioned matter. The Secretary respectfully requests that the Administrative Law Judge grant her Motion to Amend, which is hereby incorporated by reference, and deny Respondent’s motion to dismiss.

REPLY TO OBJECTION AND RESPONSE TO MOTION TO AMEND

Jim Reynolds, a section foreman employed by Respondent, was served with the original order on September 28, 2010, as well as with the April 11, 2011, and April 28, 2011, supplements, which modified the order to a significant and substantial (“S&S”) violation. MSHA’s Office of Assessments (“Assessments”) issued its proposed assessment for Order No. 8110602 on May 18, 2011, subsequent to the April modifications. This demonstrates that Respondent was on notice – prior to the issuance of MSHA’s initial, erroneous, proposed assessment – that the order should be assessed as S&S. The Secretary’s amended, proposed assessment of $52,500.00 was calculated based on the modified order in accordance with Assessments’ procedures and is therefore justified by the facts and law. Respondent has not shown any legally cognizable prejudice as a result of this amendment.

Respondent confusingly argues that the Secretary cannot amend her proposed assessment for Order No. 8110602 prior to the Commission’s de novo review of that assessment. However, it is precisely because the Commission has the right of de novo review that amendments should be freely granted. Accord Sec’y of Labor v. New Haven Trap Rock-Tomasso, 1 FMSHRC 504, 504-506 (FMSHRC ALJ June 5, 1979). Neither Respondent nor the Commission is “bound” by the Secretary’s proposed assessment, and Respondent can seek the Commission’s review to prove that the Secretary’s proposal is not supported by the facts. See id. Consequently, Respondent is protected from any abuse of the assessment by the Secretary process because the Commission operates as a check on her power.

REPLY TO COUNTER-MOTION TO DISMISS

            In its Counter-Motion to Dismiss, Respondent asks the Commission to dismiss the Secretary’s petition and vacate her proposed assessment because it was not issued within a “reasonable time,” as contemplated by § 105(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Act”). Respondent relies almost exclusively on the August 22, 2011, Order of Dismissal issued by Administrative Law Judge Thomas P. McCarthy in Secretary of Labor v. Long Branch Energy, Docket Nos. WEVA 2010-467, et al. (FMSHRC ALJ August 22, 2011) (“Order of Dismissal”). This argument is baseless, as the Long Branch decision does not address the subject situation. Further, pursuing such a position demonstrates Respondent’s fundamental lack of understanding of the legal requirements for timeliness under the existing precedential Commission and federal appellate case law.

It is the Secretary’s position that her proposed assessment for Order No. 8110602 was issued within a “reasonable time.” The original, proposed assessment was issued within eight months of MSHA writing Order No. 8110602. Given the number of violations that Assessments must process, eight months is a typical – and reasonable – timeframe for the issuance of a special assessment. Specially assessing a violation involves numerous MSHA personnel located in various offices. The Commission is well aware that nothing like the current backlog of cases has been seen in the history of the Act. See, e.g., Sec’y of Labor v. Maple Coal Co., 32 FMSHRC 726, 737 (Chief ALJ Lesnick June 15, 2010) (There is an “unprecedented number of cases” before the Commission and an “unprecedented number of penalty petitions pending before the Secretary . . . .”). Before these violations become cases for litigation, they must be processed by Assessments. Accordingly, Assessments is directly impacted by the increased number of violations issued by MSHA and by the increased number of violations contested by operators like Respondent. Workload constraints and the logistics of coordinating among the offices involved in assessing proposed penalties demonstrate adequate cause for any alleged delay in the subject assessment’s issuance to Respondent.

Even if an eight-month processing period were not reasonable, the remedy of dismissal sought by Respondent is unsupported by relevant law.

Brock v. Pierce County Precludes Dismissal of These Proceedings

Respondent’s Counter-Motion to Dismiss is subject to the principles set forth by the Supreme Court in Brock v. Pierce County, 476 U.S. 253 (1986). In Brock, the Court addressed whether the Secretary of Labor lost the authority to recover misused funds under the Comprehensive Employment and Training Act because he failed to issue a final determination of misuse within the 120-day period specified for such action in the statute. The Court began its analysis by stating:

            This Court has frequently articulated the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided. We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.

476 U.S. at 260 (citations, internal quotation marks, and footnote omitted). The Court then analyzed the statutory language and design and the legislative history and determined that there was “simply no indication . . . that Congress intended to remove the Secretary’s enforcement powers” if he failed to issue a final determination within the 120-day period. 476 U.S. at 266. The Court concluded that Congress intended the 120-day period “to spur the Secretary to action, not to limit the scope of his authority.” 476 U.S. at 265.

Since Brock, the Supreme Court has never construed a “provision that the Government ‘shall’ act within a specified time, without more, as a jurisdictional limit precluding action later.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-159 (2003) (summarizing cases). Likewise, the D.C. Circuit Court of Appeals has followed suit and never construed such a provision as divesting the Government of authority to act. See, e.g., Bro. of Railway Carmen Div., Transportation Communications Int’l Union v. Pena, 64 F.3d 702, 704 (D.C. Cir. 1995); Gottlieb v. Pena, 41 F.3d 730, 733-37 (D.C. Cir. 1994) (summarizing cases). Underlying all of the case law is the principle that “[t]here is no presumption or general rule that for every duty imposed upon . . . the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent.” United States v. Montalvo-Murillo, 495 U.S. 711, 717 (1990) (citation omitted). When Congress has not affirmatively indicated that the Government's failure to act within a specified time limit precludes it from subsequently acting to enforce the law and protect the public, courts should not, and cannot, “invent a remedy to satisfy some perceived need to coerce . . . the Government into complying with the statutory time limit[.]” Montalvo-Murillo, 495 U.S. at 721. Accord Brock, 476 U.S. at 265-66; Gottlieb, 41 F.3d at 734, 736.

The question in this case is whether there is “a clear indication,” Railway Carmen, 64 F.3d at 704, that Congress intended to authorize the Commission to remedy the Secretary's purported failure to propose a penalty “within a reasonable time” under Section 105(a) of the Mine Act by refusing to assess a penalty and thereby depriving the Secretary of the power to enforce the Act through the imposition of a penalty. The Secretary submits that there is “simply no indication,” Brock, 476 U.S. at 266, that Congress intended to authorize the Commission to devise such a drastic remedy. On the contrary, the Secretary submits, there are a number of strong indications that it did not.

            The foregoing analysis is supported most explicitly by the text and the legislative history of Section 105(a) itself. Section 105(a) merely states that the Secretary shall propose a penalty “within a reasonable time after the termination of [an] inspection or investigation” that results in the issuance of a citation or order. Section 105(a) specifies no consequence if the Secretary fails to propose a penalty “within a reasonable time.” Significantly – indeed, the Secretary submits, dispositively – the report of the Senate Committee that drafted the provision that became Section 105(a) stated:

            After an inspection, the Secretary shall within a reasonable time serve the operator by certified mail with the proposed penalty to be assessed for any violations. The bill requires that the representative of miners at the mine also be served with the penalty proposal. To promote fairness to operators and miners and encourage improved mine safety and health generally, such penalty proposals must be forwarded to the operator and the miner representative promptly. The Committee notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not be possible, and the Committee does not expect that the failure to propose a penalty promptly shall vitiate any proposed penalty proceeding.

S. Rep. No. 95-181, 95^th Cong., 1^st Sess. 34, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95^th Cong., 2^nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978) (emphasis added). Refusing to assess a penalty for an affirmed violation is “vitiate[ing] [a] proposed penalty proceeding,” as is dismissing a penalty proceeding outright, the action Respondent moves for here.

            In addition, the Secretary’s analysis is supported by Sections 110(a) and 110(i) of the Mine Act. Section 110(a) states that “[t]he operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of th[e] Act, shall be assessed a civil penalty by the Secretary . . . .” The first sentence of Section 110(i) states that “[t]he Commission shall have authority to assess all civil penalties provided in th[e] Act.” Both the courts and the Commission have interpreted the quoted provisions to mean that a penalty must be assessed for every violation of a standard. Asarco, Inc.-Northwestern Mining Dept. v. FMSHRC, 868 F.2d 1195, 1197-98 (10^th Cir. 1989); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5^th Cir. 1982); Sec’y of Labor v. Spurlock Mining Co., 16 FMSHRC 697, 699 (1996); Sec’y of Labor v. Tazco, Inc., 3 FMSHRC 1895, 1896-97 (1981). As the Commission explained in Tazco after analyzing the quoted provisions and the relevant legislative history:

            The language of the two subsections – indeed, the language of all of section 110 – is plainly based on the premise that a penalty will be assessed for each violation at both the Secretarial and Commission levels.

. . .

            [B]oth the text and legislative history of section 110 make clear that the Secretary must propose a penalty assessment for each alleged violation and that the Commission and its judges must assess some penalty for each violation found.

3 FMSHRC at 1896-97 (emphasis added). Accord Sec’y of Labor v. Old Ben Coal Co., 7 FMSHRC 205, 208 (1985), and cases there cited. “When a violation occurs, a penalty follows.” Asarco, 868 F.2d at 1197.

            The Secretary’s analysis is also supported by the second sentence of Section 110(i). That sentence states that, in assessing penalties, the Commission “shall consider” six factors: (1) the operator’s history of previous violations, (2) the appropriateness of the penalty to the size of the operator’s business, (3) whether the operator was negligent, (4) the effect on the operator’s ability to continue in business, (5) the gravity of the violation, and (6) the operator’s good faith in attempting to achieve rapid compliance after notification of the violation. It is an established principle of statutory construction that the ‘“mention of one thing implies the exclusion of another thing.”’ Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997) (quoting Ethyl Corp. v. EPA, 51 F.3d 1053, 1061 (D.C. Cir. 1995)). Because Section 110(i) specifies the six factors the Commission shall consider in assessing penalties, the Commission may not consider others. See Ethyl, 51 F.3d at 1058, 1061 (because the statute specified the factors on which EPA was to base its decisions, EPA could not consider others). The Commission has recognized as much and has repeatedly held that, in assessing penalties, it and its judges may not consider factors other than the six factors specified in Section 110(i). See, e.g., Sec’y of Labor v. RAG Cumberland Resources LP, 26 FMSHRC 639, 658-59 (2004) (The judge erred in considering “a breach of a fundamental Mine Act purpose[.]”), petition for review denied by Cumberland Coal Resources v. FMSHRC, 171 Fed.Appx. 852 (D.C. Cir. 2005); Sec’y of Labor v. Ambrosia Coal & Construction Co., 18 FMSHRC 1552, 1565 (1996) (the judge erred in considering deterrence). If the Commission may not assess a penalty on the basis that that penalty will deter the operator from committing future violations, accordingly, it may not refuse to assess a penalty on the basis that that refusal will coerce the Secretary into acting more promptly in future cases.

            When the first sentence of Section 110(i) is read in context – that is, read in conjunction with Section 110(a) and with the second sentence of Section 110(i) – it compels the conclusion that the Commission must assess a penalty for every violation. The fact that Section 110(i) gives the Commission the authority to assess penalties does not mean that the Commission has the authority to refuse to assess penalties. Balancing of interests under the Act “is a task for Congress,” Brock, 476 U.S. at 266, not a task for the Commission. Had Congress intended to authorize Section 105(a)’s “reasonable time” provision to be applied as Respondent would have it applied here – an application that “bestow[s] upon the [mine operator] a windfall” and makes the safety of miners “forfeit to the accident of noncompliance with statutory time limits,” Montalvo-Murillo, 495 U.S. at 720 – Congress would have said so. It did not.

             Congress intended the imposition of a sufficient civil penalty to be “the mechanism for encouraging operator compliance with safety and health standards.” Coal Employment Project v. Dole, 889 F.2d 1127, 1132 (D.C. Cir. 1989) (internal quotation marks and citation to legislative history omitted) (emphasis added); see also 26 FMSHRC 666, 696 (2004) (Jordan and Young, Commissioners, dissenting) (Refusal to assess a penalty “can only erode a miner’s confidence in the agency’s ability to ensure that violations of mandatory health and safety standards will be subject to an appropriate sanction.”). Given the civil penalty’s role in encouraging compliance, refusal to assess a penalty would fundamentally undercut the mine safety and health program.

In sum, the Secretary submits that the meaning of the statute is plain: Congress did not intend to authorize the Commission to remedy the Secretary’s failure to propose a penalty “within a reasonable time” by resorting to the drastic remedy of refusing to assess any penalty at all. If the meaning of the statute is not plain – that is, if Congress’ intent is not unambiguous – the Secretary’s analysis is entitled to acceptance because it is reasonable.

Secretary of Labor v. Twentymile Coal Company Precludes Dismissal of These Proceedings

The D.C. Circuit Court of Appeals ruled in Secretary of Labor v. Twentymile Coal Company that the Secretary’s interpretation of the phrase “reasonable time,” contained in § 105(a) of the Act, was deserving of deference. Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005) (The Secretary of Labor’s issuance of a proposed civil penalty was made within a reasonable time when approximately 11 months elapsed between the conclusion of MSHA’s accident investigation and the assessment of a civil penalty; approximately 17 months had elapsed between issuance of an order and the proposed assessment.). Concurring in the Commission’s decision in Secretary of Labor v. Marfork Coal Co., 29 FMSHRC 626, then Chairman Duffy observed that: “it is essentially the Secretary, not the Commission, and certainly not the operator who determines what time is ‘reasonable’ for purposes of Section 105(a).” 29 FMSHRC at 637-638 n.10 (2007) (Duffy, Chairman, concurring) (citing Twentymile Coal Co., 411 F.3d at 261-62) (emphasis added).

The Operator alleges that approximately eight months elapsed between the issuance of the subject violation and the assessment of its proposed civil penalty. As the Commission and Respondent are both fully aware, MSHA has enhanced its enforcements efforts over the past five years and increased the number of inspectors employed nationally. As a result, the number of violations issued by inspectors has risen substantially; operators’ contest rates of those violations have also increased dramatically. Consequently, the MSHA Office of Assessments must process civil penalties for an unprecedented number of violations. Under these circumstances, there was no unreasonable delay in MSHA’s proposal of a penalty, and it is the Secretary’s position that the Operator was notified about the proposed civil penalty within a reasonable period of time.

Respondent Cannot Show Legally Cognizable Prejudice

Even assuming the Commission could lawfully refuse to assess a penalty for a violation of the Act based on the Secretary’s unreasonable delay in assessing such penalty, relevant law suggests that it should not do so without first considering whether the operator was prejudiced by that alleged delay. In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court addressed when to excuse a party's failure to comply with a court-ordered filing deadline under the Bankruptcy Code – an issue analogous to the one in this case. The Court concluded as follows:

Because Congress has provided no other guideposts for determining what sorts of neglect will be “excusable,” we conclude that the determination is at bottom an equitable one, taking into account all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.

. . .

[T]he lack of any prejudice to the debtor or to the interests of efficient judicial administration, combined with the good faith of respondents and their counsel, weigh strongly in favor of permitting the tardy claim.

507 U.S. at 395, 398 (citation and footnotes omitted) (emphases added). In so concluding, the majority specifically rejected the dissent's position that the Court should “permit judges to take account of the full range of equitable considerations only if they have first made a threshold determination that the movant is ‘sufficiently blameless’ in the delay . . . .” Id. at 395 n.14. Lower courts have applied the principles set forth in Pioneer to a variety of procedural situations and have emphasized that, under Pioneer, the absence of any prejudice to the moving party or the interests of efficient judicial administration, and the good faith of the nonmoving party, should be given particular consideration in deciding whether to grant a motion to dismiss. See, e.g., George Harms Construction Co. v. Sec’y of Labor, 371 F.3d 156, 163-64 (3d Cir. 2004) (applying Fed. R. Civ. P. 60(b)(1) to an Occupational Safety and Health Review Commission proceeding); United States v. Brown, 133 F.3d 993, 996-97 (7th Cir.) (applying Fed. R. App. P. 4(b) to a criminal appeal), cert. denied, 523 U.S. 1131 (1998)).

Courts have likewise held that prejudice is a critical factor when considering whether to impose dismissal or default for procedural errors under Federal Rules of Civil Procedure 55 and 60(b). Draper v. Coombs, 792 F.2d 915, 924-925 (9th Cir. 1986); Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976). In cases involving delay in issuing criminal indictments, the courts have consistently held that the objecting party must show prejudice. See, e.g., United States v. Rein, 848 F.2d 777, 781 (7th Cir. 1988).

Finally, the Commission itself has employed a similar analysis in addressing a similar situation under the Mine Act. In Secretary of Labor v. Old Dominion Power Co., 6 FMSHRC 1886 (1984), rev'd on other grounds, 772 F.2d 92 (4th Cir. 1985), the operator argued that a citation should be dismissed on the ground that it was not issued with “reasonable promptness” within the meaning of Section 104(a) of the Mine Act, 30 U.S.C. § 814(a). The Commission rejected the operator's argument and emphasized:

Most important, . . . Old Dominion has not shown that it was prejudiced by the delay. Indeed, Old Dominion was aware from the time of its employee’s fatal accident that an investigation involving its actions was being conducted by MSHA, and it has been given a full and fair opportunity to participate in all stages of this proceeding.

Id. at 1894 (emphasis added).

In contravention of the principles set forth above, the Commission in previous cases has held that a showing of prejudice to the operator is not a prerequisite to an action by the Commission vitiating a proposed penalty proceeding, and that such prejudice is to be considered only after a finding of adequate cause for delay in proposing the penalty. See Sec’y of Labor v. Steele Branch Mining, 18 FMSHRC 6, 14 (1996) (adopting the two-step analysis set forth by the Commission in Sec’y of Labor v. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2092-93 (1993), aff'd on other grounds, 57 F.3d 982 (10th Cir. 1995)).

The Secretary respectfully suggests that the approach in Steel Branch and Rhone-Poulenc should be altered. Vacating a civil penalty is particularly inappropriate under the Mine Act because it represents a ‘“drastic course . . . [that] would short circuit the penalty process and, hence, a major aspect of the Mine Act's enforcement scheme.’” Rhone-Poulenc, 57 F.3d at 984 (quoting Salt Lake County Road Dept., 3 FMSHRC 1714, 1716 (1981)). Further, the Twentymile Court noted “that it would be particularly inappropriate to set aside the Secretary’s recommendation for penalty in this case given that Twentymile, after repeated opportunity, has yet to show any prejudice to itself from whatever delay in fact occurred.” 411 F.2d at 262. Respondent has not shown any legally cognizable prejudice based on the alleged delay in finalizing the proposed assessment of Order No. 8110602, as the Secretary calculated her amended “recommendation for penalty” based on the relevant facts and law, and the Commission’s de novo review provides protection against arbitrary actions on the Secretary’s part. Formal discovery has not commenced, an administrative law judge had not been assigned to preside over the case when the Secretary filed her Motion to Amend, and the facts upon which Respondent will base its defenses have not changed.

ALJ McCarthy’s Long Branch Decision is Inapplicable to the Instant Proceedings

On August 22, 2011, Administrative Law Judge McCarthy dismissed seven Long Branch Energy civil penalty dockets because the petitions for assessment of civil penalty had been filed after the submission deadline set forth in Commission Rule 28, which provides that “[w]ithin 45 days of receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the Commission a petition for assessment of penalty.” See Order of Dismissal; 29 C.F.R. § 2700.28. In the subject case, the Secretary complied with both Commission Rule 28 and § 105(d) of the Act: the Operator contested the proposed civil penalty on May 27, 2011; forty-five days later, on July 11, 2011, the Secretary filed its petition for assessment of civil penalty. Accordingly, the Long Branch decision has no bearing on the instant matter; further, the decisions of Commission administrative law judges have no precedential value, and Judge McCarthy’s Long Branch opinion is on appeal at this time.

Given the parties’ responsibility to cite contrary precedents when presenting arguments to the Commission or its judges, we can only assume that Respondent overlooked or was not familiar with the Twentymile decision, a decision that actually addresses the legal concerns at issue here. Respondent’s specific references to Judge McCarthy’s Order of Dismissal belie such an oversight, as Judge McCarthy explicitly referred to the Twentymile decision in that order:

The standards pertaining to a proposed penalty under section 105(a) of the Act and a proposed penalty under section 105(d) starkly differ as to their purpose and implementation. A proposed penalty under section 105(a) is submitted to the operator once the process of inspecting or investigating the alleged violation is completed under section 104 and the assessment of monetary penalty is completed under section 110(a). See 30 U.S.C. §815(a). Such a process potentially can take an extended period of time and thus Section 105(a) affords a more generous allowance for the Secretary to submit the proposed penalty within a “reasonable time.” Id. See generally Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 261-62 (D.C. Cir. 2005) (examining the “reasonable time” standard as it applies to the untimeliness of the Secretary to submit the proposed penalty) . . . .

Order of Dismissal, at 6 n.5 (emphasis added). In short, Judge McCarthy himself not only referred to the Twentymile decision; he recognized, correctly, that it applies to the very issue presented here. By filing its motion to dismiss, Respondent has needlessly cost the Secretary and the Commission valuable time and resources that could have been better spent working towards resolution of legitimate legal disputes.

CONCLUSION

In light of the foregoing, the Secretary respectfully asserts that the Commission does not have the authority to dismiss this case for failure to comply with the timeliness requirements set forth in § 105(a) of the Act.

WHEREFORE, the Secretary respectfully requests that the Administrative Law Judge grant her Motion to Amend and deny Respondent’s Counter-Motion to Dismiss.

______________________________

A. Scott Hecker

Attorney, United States Department of Labor