<DOC>
[DOCID: f:l9710m.wais]

 
ROBERT J. COX, employed by REDLAND QUARRIES U.S., INC.
June 6, 1997
LAKE 97-10-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                          June 6, 1997

SECRETARY OF LABOR,               :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :     Docket No. LAKE 97-10-M
               Petitioner         :     A. C. No. 33-00134-05557 A
                                  :
          v.                      :
                                  :     Redland Ohio - Woodville Mine
ROBERT J. COX Employed by REDLAND :
  QUARRIES U.S., INC.,            :
               Respondent         :
                                  :
SECRETARY OF LABOR,               :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :     Docket No. LAKE 97-11-M
               Petitioner         :     A. C. No. 33-00134-05558 A
                                  :
          v.                      :
                                  :     Redland Ohio - Woodville Mine
DALE BUSDEKER, Employed by        :
  REDLAND QUARRIES U.S., INC.,    :
               Respondent         :
                                  :
SECRETARY OF LABOR,               :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :     Docket No. LAKE 97-12-M
               Petitioner         :     A. C. No. 33-00134-05559 A
                                  :
          v.                      :
                                  :     Redland Ohio - Woodville Mine
GILBERT A. SANCHEZ, Employed by   :
  REDLAND QUARRIES U.S., INC.,    :
               Respondent         :


                ORDER GRANTING MOTIONS TO DISMISS

Before:  Judge Fauver

     These are civil penalty cases against corporate employees
alleged to be agents under section 110(c) of the Federal Mine
Safety and Health Act of 1997, 30 U.S.C. § 801, et seq.  The
charges stem from a citation issued against the corporation on
December 13, 1994.  The cases against Respondents were filed on
November 27, 1996.

     Respondents have moved to dismiss on the ground that the
charges are untimely.

     Neither the Act nor the Secretary's regulations impose a
time limit for bringing penalty actions under section 110(c).
However, section 105(d) of the Act provides that hearings before
the Commission shall be conducted under section 5 of the
Administrative Procedure Act, which provides in part:

     Persons entitled to notice of an agency hearing shall
     be timely informed of --

          (1)  the time, place, and nature of the hearing;

          (2)  the legal authority and jurisdiction under which
          the hearing is to be held; and

          (3)   the matters of fact and law asserted.

          This section has been applied to require a timely petition
          for civil penalties in section 110(c) cases.  Manuel
          Palacios.  (Docket No. DENV 76-29)  (Office of Hearings
          and Appeals,
          U.S. Department of the Interior; Order of Judge
          Sweitzer, June 16, 1977); Wayne R. Steen, 16 FMSHRC
          2293, 2300, fn 2 (Judge Fauver, 1994), reversed on
          other grounds, 18  FMSHRC 1552  (1996).  See also:
          Robert V. Swindall, 13 FMSHRC 310, 313-14 (Judge
          Broderick; 1991) (suggesting that an 18 month delay
          with prejudice to the party, e.g., disbursal of
          witnesses and faded memories, would warrant dismissal);
          Ernie Brock, 4 FMSHRC 201 (Judge Koutras, 1982)
          (dismissing a section 110(c) case where 26 months
          elapsed); Curtis Crick, 15 FMSHRC 7335, 737 (Judge
          Melick, 1993) ("[B]ecause [section 110(c)] cases
          directly impact individual rights, the concepts of fair
          play and due process must be even more carefully
          protected.")

          Section 110(c) cases, with their focus on enforcement
          against individuals, are analogous to criminal cases
          where fairness and due process are of heightened
          importance.  The rationale for requiring diligent
          notification of charges in criminal cases was
          succinctly stated by Judge Skelly Wright in Nichens v.
          United States:

          Memory grows dim with the passage of time.
     Witnesses disappear.  With each day, the accused
     becomes less able to make out his defense.  If, during
     the delay, the Government's case is already in its
     hands, the balance of advantage shifts more in favor of
     the Government the more the Government lags.

323 F.2d 808, 813 (D.C. Cir. 1973), cert. denied, 379 U.S. 905
(1974).

     Respondents' motions to dismiss demonstrate untimeliness in
the charges with prejudice to Respondents.  The citation against
the corporation was issued in December 1994.  In February 1995,
the Secretary conducted a special investigation.  No individuals
were charged.  On October 10, 1996, the Secretary notified
Respondents that they would be charged with violations.
Petitions were filed before the Commission on November 27, 1996.
On December 5, 1996, a key witness died (William Diels, a
maintenance employee who actually worked on the brakes that are
the subject of the alleged violations).  Important documents are
missing, a number of witnesses have left the company, and it is
reasonable to presume that memories have faded over this long
period, with prejudice to Respondents' defenses.

     I find that the delay of nearly 2 years warrants dismissal.

     Accordingly, the motions to dismiss are GRANTED and these
     proceedings are DISMISSED.


                                    William Fauver
                                    Administrative Law Judge

Distribution:

Patrick L. DePace, Esq., Office
of the Solicitor, U. S.
Department of Labor, 881 Federal
Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified
Mail)

William Doran, Esq., Michael T.
Heenan, Esq., Smith, Heenan &
Althen, 1110 Vermont Avenue, NW,
Suite 400, Washington, DC 20005-
3593 (Certified Mail)

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