FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

December 30, 2011

DECISION ON REMAND

Background

             These cases are before me under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (2006) (“the Act”). On September 21, 2011, the undersigned judge issued a summary decision based upon facts presented by the Respondent and undisputed by the Secretary of Labor (“Secretary”) finding that the Secretary had shown no factually supported reason (adequate cause) as to why her petitions for assessment of civil penalties were not timely filed and dismissing the petitions. As stated in that decision, CAM Mining, LLC (“CAM”) had filed, on August 26, 2011, a motion for summary decision based on the Secretary’s failure to establish adequate cause for her late filing of the petitions at issue. It was also noted therein that the Secretary had not responded to the motion and that the Respondent’s proffered statement of facts was therefore accepted as undisputed . Applying Commission Rule 67(b) and constrained by Commission precedent and by the undisputed facts presented, the motion was granted. One of the effects of the summary decision however was to modify a prior order of another judge in the case which had been issued on the now undisputed misrepresentation of facts set forth in an affidavit submitted by the Secretary’s representative.

             In her petition for review before the Commission, the Secretary did not challenge the summary decision on its merits and acknowledges that a prior determination in these cases by another judge would not in any event be subject to the “law of the case” doctrine or otherwise be binding on this judge. Furthermore she does not claim that the summary decision herein, which was based on undisputed facts, was lacking in substantial evidence. Indeed, the Secretary has never alleged that the facts as presented by CAM are in dispute and there is no record evidence that her failure to file a timely petition was in fact due to the claimed “delivery error” which was the sole reason the Secretary advanced as “adequate cause.”

Remand

            The summary decision in these cases (based on undisputed facts) was vacated and remanded on the grounds that it was “essential” for the Commission to know why an earlier order by another judge in the case (issued on a misrepresentation of facts in an affidavit submitted by the Secretary) was not followed. Under long-standing and well-established precedent, this Commission has required the Secretary to demonstrate adequate cause for delays in filing penalty petitions. See Salt Lake County Road Department 3 FMSHRC 1714, 1716 (July 1981) . In these cases, the Secretary has not only failed to sustain her burden of demonstrating adequate cause for her delay but misrepresented material facts in an affidavit under oath before that prior judge in her apparent attempt to claim that her delay was caused by a “delivery error.”

            In issuing his previous order, the judge indicated that the affidavit submitted by the Secretary alleged a “delivery error” as her “adequate cause” for late filing. However, since that affidavit has now been shown to have been based on a misrepresentation of facts and that the delay was not in fact based on the claimed “delivery error,” that order could not be permitted to stand without remediation . The judge also noted in his order that “given the unprecedented number of penalty petitions pending before the Secretary, strict adherence to the 45 day time line [for filing penalty petitions] is unrealistic.” It is noted however that the Secretary never claimed that her delay was due to any number of pending penalty petitions.

            Accordingly, since the Secretary submitted to the prior judge an affidavit misrepresenting that the reason for her delay was because of a “delivery error” and failed to provide any other grounds for her delay, she had failed before that prior judge to sustain her burden of proving “adequate cause” for her delay in filing the penalty petitions herein.

            Since the prior judge’s order allowing late filing could have been premised only on the sole reason provided by the Secretary for “adequate cause” and that reason has been shown by undisputed evidence to have been misrepresented, that prior order could not be permitted to stand without remediation.

                                                                                    /s/ Gary Melick

                                                                                    Gary Melick 

                                                                                    Administrative Law Judge

                                                                                    (202) 434-9977

Distribution:

Lora J. Manson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219

Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd., East, P.O. Box 273, Charleston, WV 25321

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