The Supreme Court’s more recent effort to determine the consequences of a missed deadline where the statute does not provide for one is Dolan v. United States, ___ U.S. ___, 130 S. Ct. 2533, 2539-40 (2010). Dolan was a criminal case in which the 5-4 majority held that a sentencing court, which missed the 90-day deadline to order restitution, retained the power to do so, at least where the court made clear prior to the deadline’s expiration, that it would do so, thus leaving only the amount of restitution at issue. Dolan expanded upon Brock by dividing procedural deadlines into three categories.

            The first category is a jurisdictional deadline, an absolute and unalterable prohibition that prevents a court from permitting or taking action after the deadline is passed by stripping the court of its subject-matter jurisdiction. See Dolan, supra, 130 S. Ct. at 2538 (citing, inter alia, John R. Sand & Gravel Co., v. U.S., 552 U.S. 130-133-34 (2008)). Jurisdictional deadlines must be founded upon clear legislative intent to deprive a tribunal of adjudicatory authority upon the expiration of the deadline. Id.

            The second category is a claims processing rule that does “not limit a court’s jurisdiction but rather regulate[s] the timing of motions or claims brought before the court.” See Dolan, supra, 130 S. Ct. at 2538. Unlike a jurisdictional deadline, the protection of a claims processing deadline may be forfeited where a party fails to object to the tardy party’s untimeliness. Id., citing Kontrick v. Ryan, 540 U.S. 443, 454-56 (2004) (60-day bankruptcy rule deadline for creditor’s objection to debtor’s discharge); Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam) (7-day criminal rule deadline for filing motion for a new trial)..

            The third category, under which Brock, Montalvo-Murillo, and Barnett fall, “seeks speed by creating a time-related directive that is legally enforceable but does not deprive a judge or public official of the power to take the action to which the deadline applies if the deadline is missed.” Dolan, supra, 130 S. Ct. at 2538 (emphasis added) (citing United States v. Montalvo-Murillo, supra, 495 U.S. at 722 (missed deadline for holding bail detention hearing does not require judge to release defendant)); Brock, supra, 476 U.S. at 266 (missed deadline for making final determination as to misuse of federal grant funds does not prevent later recovery of funds); Barnhart, supra, 537 U.S. at 171-72 (missed deadline for assigning industry retiree benefits does not prevent later award of benefits). Time-related directive deadlines are primarily used to spur a court or other public official to action by a certain time, but do not normally divest the public official of the power to act if the deadline is not met. Brock, supra, 476 U.S. at 265.

            In determining which category a deadline falls, the Supreme Court has looked to the language, context, and purpose of the statute and the public interest that the statute seeks to uphold. Dolan, supra, 130 S. Ct. at 2539, 2540. In Salt Lake, the Commission did just that. The Commission considered Congressional intent and the public interests at stake. The Commission recognized that the “Secretary is not free to ignore the time constraints in Rule [28] for any mere caprice, as that would frustrate the enforcement purposes of section 105(d) and, in some cases, deny fair play to operators.” 3 FMSHRC at 1716. Rather, Rule 28 is a “procedural rule designed to give specific and concrete form to section 105(d)’s injunction for ‘immediate’ action in order to effectuate the Mine Act’s penalty system.” Id. at 1717.

            The Commission’s rules and MSHA’s own regulations are frustrated when petitions are not timely filed. For example, when determining the existence of a pattern of violations under 30 CFR §104.3, MSHA only examines repeated violations that have became final orders of the Commission during the last twelve months. Mine Safety & Health Admin., Pattern of Violations Screening Criteria - 2010, http://www.msha.gov/POV/POVScreeningCriteria2010.pdf. Similarly, the way MSHA assesses penalties is disrupted when cases are not resolved promptly. In determining penalties, MSHA only considers violations that have “been paid or finally adjudicated, or have become final orders” during the preceding fifteen months. 30 C.F.R. § 100.3(c). Thus, if the Secretary were given numerous months beyond the 45-day deadline or up to five years to file a petition as suggested by the Secretary, the final order of the Commission could be so removed from the date the citation was issued, that it would become meaningless in establishing a pattern of violations.

            The public interest at issue further distinguishes the present cases from Brock and progeny. Unlike preventing the Secretary of Labor from retrieving misused government funds as in Brock, requiring that a dangerous arrestee for drug trafficking offense be set free as in United States v. Montalvo-Murillo, depriving miners of benefits as in Barnhart, or depriving an assault victim of restitution in Dolan, the harm to the public interest if the cases at bar were dismissed for having been untimely filed, while important, appears to be less severe because the cited conditions must and have already been abated within a reasonable time after the citation was issued. 30 U.S.C. § 814(a). Put differently, miners are no longer at risk by the time the citations are contested. Rather, the enforcement of the penalties primarily promotes the welfare of the miners by serving as a deterrent against future violations and this deterrent effect must be balanced against the recognized public interest in expeditiously resolving contested penalties before the Commission. Both Congress and the Commission have made it abundantly clear that the “expeditious resolution of penalty cases” also serves an important public interest. MSHA v. Buck Creek Coal, 17 FMSHRC 500, 503 (April 1995); MSHA v. Scotia Coal Mining Co., 2 FMSHRC 633, 635 (March 1980) (stating that “Congress has forcefully expressed its desire for the expeditious determination of whether penalties are warranted.”)

            It is clear from a reading of the text of the Mine Act, that Congress did not intend the term “immediately” in section 105(d) to be a jurisdictional rule nor did Congress expressly provide that a federal rule could restrict the Commission’s subject matter jurisdiction. Such a view is consistent with Commission precedent holding that the deadline for petition filing is not to be construed as jurisdictional, a statute of limitations, or a “procedural strait jacket” requiring strict compliance. See Salt Lake, supra, 3 FMSHRC at 1716. Additionally, as detailed above, the deadline exists in a substantially different context than does Brock and its progeny. The deadlines in Brock, Montalvo-Murillo, Barnhart, and Dolan are time-related directives intended to give guidance to an official or a court to perform a task by a certain time. They are not intended, like the deadline in the present cases, to serve as a procedural limitation for parties in an adjudicatory process. Given this fact, and Rule 28’s importance to the overall legislative and regulatory scheme and the mitigated impact on the public interests involved, I find Brock and its progeny inapposite to the cases at bar. Thus, in my view, Rule 28’s deadline for the Secretary to file her penalty petition is most accurately classified as a claims processing rule, adopted by the Commission to aid in the orderly transaction of its business. As such, the decision to relax the deadline appears to lie within the Commission’s discretion. See, e.g., Bowles v. Russell, 551 U.S. 205, 212 (207) (citing Schacht v. United States, 398 U.S. 58, 64 (1970)).

            Finally, I conclude that the statute of limitations set forth in 28 U.S.C. § 2462 is not applicable to the current proceedings. The express language of 28 U.S.C. § 2462 provides a five-year time limit for commencing an action, suit or proceeding for the enforcement of a civil penalty, but contains an exception when Congress has provided otherwise. That exception is applicable here. The deadline for the Secretary to file a petition for assessment of civil penalty was provided by Congress in Section 105(d) of the Mine Act, which is implemented by the Commission’s 45-day deadline in Rule 28(a). See Salt Lake, supra, 3 FMSHRC at 1715. Certainly, “immediately” cannot mean five years later.

            Although the D.C. Circuit has found 28 U.S.C. § 2462 to be applicable to administrative proceedings that review an assessed penalty, it did so only after finding no controlling act of Congress that created a deadline to act. 3M Co. v. Browner, 17 F.3d 1453, 1455 (D.C. Cir.1994). Thus, in Browner, the EPA attempted to initiate an administrative proceeding seeking the enforcement of a civil penalty over two years after the civil penalty was issued. Id. Since the controlling legislation, the Toxic Substances Control Act (TSCA) contained “no provision limiting the time within which the EPA Administrator must initiate the administrative action,” the D. C. Circuit found that the 5-year statute of limitations in 28 U.S.C. § 2462 should be applied. Id. at 1455, 1462. In other words, when Congress is silent on the imposition of a time restraint for commencement of a proceeding for enforcement of a civil penalty, the 5-year statute of limitations may be invoked. Id. at 1459, n.10 (citing Mullikin v. United States, 952 F.2d 920 (1991)). By contrast, 28 U.S.C. § 2462 has no applicability to this matter because the deadline for the Secretary to file her petition is provided in Section 105(d) of the Mine Act, which is implemented by the 45-day requirement in Rule 28(a). See Salt Lake, supra, 3 FMSHRC at 1715. Accordingly, I conclude that the general catchall provision in Section 2462 is not intended to supercede Section 105(d) of the Mine Act or Commission Rule 28.

            For the foregoing reasons, I reject the Secretary’s arguments and apply the long standing “adequate cause” test set forth in Salt Lake and progeny to the instant matter.

 Application of the Commission’s Adequate Cause Test

            The Commission has held that in order to survive a motion to dismiss an untimely petition, the Secretary must first establish adequate cause for the late filing. If adequate cause is not established, the case may be dismissed and the issue of prejudice need not be decided. Only after adequate cause is established does the Commission then examine whether the delay has been prejudicial to the operator. MSHA v. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2093 (Oct. 13, 1993), aff’d 57 F. 3^rd 982 (10 Cir. 1995), citing Salt Lake County, 3 FMSHRC 1714 (July 28, 1981) and MSHA v. Medicine Bow Coal Co., 4 FMSHRC 882 (May 26, 1982).

            Concededly, the Commission has permitted the filing of untimely petitions in a number of cases based on factors such as the Secretary’s extraordinarily high caseload during particular periods of time, lack of clerical personnel, or confusion over filing deadlines because of amended standards. See, e.g., Salt Lake, 3 FMSHRC at 1714; MSHA v. Lone Mountain Processing Inc., 17 FMSHRC 839 (May 31, 1995). In recent years, some Commission judges have been accommodating when parties have filed out of time due to the Secretary’s extraordinarily high caseload. See MSHA v. Harvest-Time Coal, Inc., Docket No. WEVA 2009-293 (Sept. 24, 2010); MSHA v. Harvest-Time Coal, Inc., Docket No. WEVA 2009-1522 (Apr. 4, 2010); MSHA v. Long Branch Energy, Docket No. 2009-841 (Nov. 9, 2010). However, a rule of leniency is not without bounds and an increase in the Secretary’s workload is not always adequate cause when the delay is significant. MSHA v. Phelps Dodge Morenci, Inc., 1993 WL 395589, *3 (June 1993); MSHA v. Hecla Mining Co., 1993 WL 395630, *2 (June 1993). For example, in Phelps Dodge Morenci, then Chief Judge Merlin dismissed a case where the Secretary filed the penalty petition five months late. Id. Judge Merlin noted that the Secretary’s caseload would continue to grow as a result of changes to the penalty structure and regulations and that excusing a petition filed so late would undermine the deadline as long as the trend continued. Id.

            Furthermore, it is often overlooked, but particularly noteworthy, that the Congressional drafters of the Mine Act, while recognizing the need to accept untimely filings in some circumstances, stated that such actions should be “rare.” S. Rep. 95-181, 95th Cong., 1st Sess., 14 (1977) Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978) (addressing the late filing of proposed assessments). In recent years, the Secretary’s untimely filings have become commonplace, not rare, and I am not inclined to assume good cause based on a generic increase in workload or the Secretary’s inability to provide adequate personnel, particularly where MSHA should have been aware of a particular problem and did little to correct it.

            In the present case, the Secretary contends that the increase in contested penalty assessments and a lack of clerical personnel to process them is adequate cause for an average delay of about 267 days in filing the petitions for assessment of civil penalties. In my view, these general excuses fall short of what is required to show adequate cause. The Commission has required that for long delays in filing, “the reasons [for the delay] need to be more unique and special to the particular case, e.g., distraction from investigation of a major mine accident or loss of staff to national emergency.” Cactus Canyon of Texas, Inc., 25 FMSHRC 164, 169 (Mar. 3, 2003) (ALJ Schroeder). The Secretary’s responses contain only general statements about the nature of the backlog, high caseload, and lack of personnel, which allegedly caused the untimeliness of the petitions. The specific circumstances affecting the present cases are not addressed. If such a vague and general explanation was allowed to establish adequate cause then the Commission would be forced to accept nearly every late petition. The Commission’s properly promulgated filing deadlines and the Congressional desire for expeditious determination of civil penalty petitions would be rendered meaningless.

            While the Secretary suggests that the delay in filing the penalty petitions was due to “excusable neglect,” the facts indicate that this legal standard, assuming it is applicable, has not been met here. As more fully discussed below, Hosch’s deposition strongly suggests that the repeated late petition filings in District 4 resulted from continued inattention to filing deadlines and the absence of any pro-active steps toward solution. Indeed, in my view, the record indicates that the delay in filing petitions in these dockets was more akin to “inexcusable neglect.”

            In Pioneer Investment Services Company v. Brunswick Associates Limited, 507 U.S. 380, 395 (1993), the Supreme Court resolved a conflict in the circuits over the meaning of “excusable neglect” under various federal rules and held that an attorney’s inadvertent failure to file a proof of claim by the bar date can constitute “excusable neglect” with the meaning of Bankruptcy Rule 9006(b)(1). In the absence of Congressional guidance, the Court concluded that the determination of whether a party’s neglect is excusable is an equitable one, taking account of all relevant circumstances surrounding the party’s omission. Id. at 395. These include the danger of prejudice to the other party, the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the tardy party, and whether the tardy party acted in good faith. Id.

            Even were I to apply these factors here, instead of the Salt Lake balancing test, I would reach the same result dismissing the late-filed petitions. First, Long Branch has raised a “danger of prejudice” due to the Secretary’s untimely filings. Second, the length of delay extends significantly beyond the 45-day deadline and, as explained above, has a potential deleterious effect on prompt and expeditious resolution of civil penalty petitions, which hampers the deterrent value of heightened enforcement efforts and imposition of more severe penalties. Moreover, until the petition is filed, the adjudicatory process languishes and the potential for the backlog to grow increases at each level of review. Third, the reason for the delay was within the reasonable control of MSHA District 4 and results from a failure to recognize and deal with an obvious and growing problem and to effectively allocate resources to resolve that problem. In these circumstances, any good faith of the Secretary is discounted.

            It is important to keep in mind that the untimely petitions filed by the Secretary were relatively simple boilerplate documents. By the time the operator contested the penalties, MSHA had already completed the more difficult tasks of investigating the mine and assessing the penalties. Essentially, all the Secretary needed to do to comply with Rule 28(a) was to fill in a few blanks on a template and file the petition with the Commission, a task that could easily be automated or done by any one of the number of secretarial staff or CLRs in the District 4 office. Instead, CLR Hosch stated that the task of drafting penalty petitions for the entire district primarily fell on the shoulders of one secretary. Respt’s Ex. A at 31-32. There appears to have been little oversight of the Secretary’s filings and no procedures that would alert CLRs of neglected dockets. District 4 does not keep detailed time sheets or work logs that would show the time taken to prepare each petition. Id. at 5-6. Additionally, there was no tickler system in place to remind the CLRs in District 4 of impending deadlines, nor did CLRs receive weekly or even monthly reports of upcoming deadlines. Id. at 7. When CLR Hosch appealed to District managers for additional assistance, his appeals were ignored despite the influx of funds in the Supplemental Appropriation and the existence of other qualified secretarial staff in the District 4 office. Id. at 20, 32.

            Moreover, if the Secretary was not able to file certain petitions on time, Commission Procedural Rule 9 provides that a motion for extension of time may be granted for good cause shown. 29 C.F.R § 2700.9(a). I take administrative notice of the fact that back in March 2009, well over a year before the instant petitions were due or received, CLRs were instructed by MSHA administrators always to file a 90-day extension of time request once a timely penalty contest was received. Mine operators, miners, and independent contractors also were made aware that requests for extension of time would occur as a matter of course. See Kevin Stricklin & Neal Merrifield, MSHA, Program Information Bulletin No. P09-05 (March 27, 2009), available at http://www.msha.gov/regs/complian/PIB/2009/pib09-05.asp. In the dockets before me, however, the Secretary has routinely failed to avail herself of Commission Rule 9 or the Commission’s admonition in Salt Lake “to proceed by timely extension motion when additional time is legitimately needed” (3 FMSHRC at 1717), instead opting to simply attach a motion to accept late filing with the untimely petitions.

            Furthermore, the cases relied on by the Secretary to establish adequate cause can be distinguished from the current case, or involve relatively insignificant, short delays. For example, in Salt Lake, the delay was less than two months. 3 FMSHRC at 1714. In Rhone-Poulenc of Wyoming Co., the delay was only eleven days. 15 FMSHRC at 2094, aff’d 57 F. 3^rd 982 (10 Cir. 1995). In Medical Bow, the delay was fifteen days. 4 FMSHRC at 883. While the Commission allowed delays based on the Secretary’s high caseload in Salt Lake and Rhone-Poulenc, the caseload was “unusually high” over a fixed period of time. 3 FMSHRC at 1714; 15 FMSHRC at 2094, aff’d 57 F. 3^rd 982 (10 Cir. 1995). As the Secretary acknowledged, the current high caseload is neither unusual nor an outlier. Rather, it is part of a growing trend in contested cases that has been observed over the course of several years beginning way back in 2007 in District 4. See Secretary’s Ex. A.

            The Secretary would have the Commission believe that MSHA has been caught off guard by a sudden and unpredictable influx of contested citations, and therefore MSHA has been unable to file penalty petitions within 45 days of the operator’s contest. However, according to the Secretary’s own figures, the increase in contested penalties is a long-established trend that began in 2007, years before the instant citations were issued. To suggest that the District 4 office did not see or expect an increase in contested penalties is simply beyond reasonable belief. It has been long known and common sense dictates that heightened enforcement and increases in the penalty structure would cause operators to contest more citations. As noted, as early as 1993, then Chief Judge Merlin warned the Secretary of this inevitable result. Phelps Dodge Morenci, Inc., 1993 WL 395589, *3. When the total penalties nearly doubled in late 2007, there was a natural increase in the percentage of contested citations.

            The Secretary attempts to obscure this obvious trend by citing certain statistics and placing the blame on operators for filing increased contests. Absent evidence of a bad-faith effort by operators to overwhelm MSHA with frivolously contested citations, however, the higher rate of contested penalties has little practical import on the adequate cause analysis. Operators have the statutory right to contest penalties they believe were issued in error and may have reason to think that they are justified in contesting a significant percentage of cases at the current rate.

            Finally, even after the change in the penalty structure went into effect in 2006, the Secretary has failed to show that any significant effort was made in District 4 to ensure that petitions were filed timely with the Commission. The Secretary cannot continue to assert that the increase in workload justifies her failure to process petitions when MSHA did not made timely changes to personnel or administrative policy in an effort to alleviate the obvious problem. According to CLR Hosch’s deposition, District 4 has only one secretary processing penalty petitions. Respt’s Ex. A at 17. District 4 has three CLRs and more than fifteen additional secretarial staff, who arguably could have done more to contribute to the timely filing of penalty petitions, and MSHA declined to grant Hosch’s unspecified requests for additional help. Id. at 32. The day before oral argument in this matter MSHA formally announced that it was taking significant action to address the apparent inefficiency by splitting District 4 in two districts and allocating additional personnel and resources. See, Press Release, MSHA, MSHA’s Newly Formed Coal District 12 Begins Operations (June 14, 2011) (available at http://www.msha.gov/media/press/2011/nr110614.asp). While the creation of a new district is a step in the right direction, the recognition of the petition backlog in District 4 comes far too late.

            The Commission has routinely denied motions to reopen when the operator fails to give adequate reason for its failure to timely contest citations. See, e.g., MSHA v. XMV, Inc., 31 FMSHRC 523 (May 11, 2009), MSHA v. Premier Chemical, LLC, 31 FMSHRC 516 (May 6, 2009); MSHA v. Fisher Sand & Gravel Co., 31 FMSHRC 513 (May 6, 2009). Despite the fact that Salt Lake’s adequate cause test was an attempt by the Commission to comport with the analogous leeway extended to private litigants (see Salt Lake, 3 FMSHRC at 1716), the Secretary made clear in her oral argument that when an operator fails to contest citations in a timely manner because it is overwhelmed by the workload, the Secretary would not accept the operator’s excuse as adequate cause. Tr. of Oral Arg. at 40. Operators too are constrained by budgetary and personnel issues and it is disingenuous to suggest that these problems are unique to government. In the interest of procedural fairness, I see no reason why the same adequate cause standard should be inapplicable to the Secretary where she fails to show specific cause for failing to timely file a petition.

            The Secretary also relies on a series of unpublished cases where Commission ALJs have accepted petitions filed very late. See MSHA v. Long Branch Energy, Docket No. 2009-841 (Nov. 9, 2010) (accepting petition filed 427 days late); MSHA v. Harvest-Time Coal, Inc., Docket No. WEVA 2009-293 (Sept. 24, 2010) (accepting petition filed 323 days late); MSHA v. Harvest-Time Coal, Inc., Docket No. WEVA 2009-1522 (Apr. 4, 2010) (accepting petition filed 151 days late); MSHA v. Brody Mining, Docket No. 2009-1445 (June 3, 2009) (accepting petition filed 141 days late). These cases rely on similar rationale to permit the late filing, but provide little guidance as to the facts that justify the adequate cause analysis under the Salt Lake framework.

            While the decisions of other judges are not binding, I am inclined to agree with the primary rationale that these cases rely upon. For example, I recognize that the 45-day filing requirement may be unrealistic given the increased number of contested citations and the large backlog. See, e.g., MSHA v. Solar Sources, Inc., 31 FMSHRC 729, 730 (June 30, 2009). Similarly, I agree that neither the term “immediately” contained in Section 105(d) nor the 45-day procedural rule should be construed as a “procedural strait jacket,” particularly where adequate cause is shown based on the specific facts at issue. Salt Lake, 3 FMSHRC at 1716.

            On the other hand, allowing petitions to be filed between 7 ½ and 11 ½ months late where specific adequate cause has not been shown is less akin to a procedural strait jacket and more akin to allowing the Secretary carte blanche to ignore the prescribed filing deadlines. As noted, based on the facts disclosed in the current record, the excuses offered by District 4 in this case are more akin to inexcusable neglect than adequate cause. And, while the 45-day time limit may be unrealistic, the Secretary has not asked the Commission to change its rule. Nor has the Secretary shown specific facts establishing that District 4’s overall heavy workload as a result of increased contests is adequate cause for failing to timely file the instant petitions, particularly where MSHA has had ample time since 2007 and 2008 to make changes in personnel and policy to adapt to the obvious increase in workload.

            In sum, under extant Commission precedent, the Secretary must establish adequate cause for the delay in filing, apart from any consideration of whether the operator was prejudiced by the delay. Salt Lake, 3 FMSHRC at 1716; Rhone-Poulenc, 15 FMSHRC at 2093, aff’d 57 F. 3^rd 982 (10 Cir. 1995). In these cases, the Secretary has done nothing more than file a form instanter motion concurrently with the untimely petitions, which fails to address the specific basis justifying the delay in each individual docket. The Secretary’s approach apparently presumes that the Commission will not scrutinize the reasons for and the extent of the delay, but will instead summarily grant the Secretary’s motion based on the generic backlog, increase in contest rates, and failure to allocate resources. In my view, which may not be the popular view, Salt Lake provides otherwise. Since the Secretary has failed to demonstrate adequate cause for the untimely petitions under the Salt Lake balancing test, these cases are dismissed.

            In light of the foregoing, the Respondent’s Motions to Dismiss are hereby GRANTED and the Petitions for Assessment of Civil Penalties are DISMISSED.

                                                                        Thomas P. McCarthy

                                                                         Administrative Law Judge

Distribution:

Michele L. Dean, Esq., Office of the Solicitor, U.S. Department of Labor, 170 S. Independence Mall West, Suite 630 East, Philadelphia, PA 19106

Melissa Robinson, Esq. and Michael T. Cimino, Esq., Jackson Kelly PPLC, 1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322

/tjr