. WHITE OAK MINING AND CONSTRUCTION, INC. May 8, 1998 WEST 98-64 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 May 8, 1998 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. WEST 98-64 Petitioner : A.C. No. 42-01280-03681 A v. : : White Oak Mine No. 2 RANDY HOWELL, Employed by : WHITE OAK MINING AND : CONSTRUCTION, INC., : Respondent : ORDER DENYING MOTION TO DISMISS This case is before me pursuant to sections 105(a) and 110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815(a) and 820(c). Respondent Howell has moved to dismiss the case against him on the grounds that there was an unreasonable delay between the time the underlying orders in the case were issued to the operator and the time he was notified that the Secretary was assessing penalties against him under section 110(c). The Secretary opposes the motion. For the reasons set forth below, the motion is denied. The following is the chronology of events in this case: 1. May 23, 1995, Order Nos. 3855382 and 3855384 issued to White Oak Mining & Construction, Inc. 2. June 13, 1995, a section 110(c) special investigation involving the facts in the above orders assigned to MSHA Special Investigator, Bruce Andrews. 3. June 15, 1995, Andrews receives case file. 4. August 24, 1995, Andrews begins working on investigation. 5. August 24, 1995 - July 11, 1996, Andrews conducts investigation, including interviewing 17 miners and inspectors. a. Howell interviewed September 20, 1995. 6. March 21, 1996, initial case file received by MSHA Technical Compliance and Investigative Division (TCID) in Arlington, VA, headquarters. Respondents notified of right to request conferences on the allegations. 7. August 6, 1996, conference held between MSHA and Respondents. 8. March 13, 1997, case file received by TCID, with additional investigative material obtained as the result of further investigation conducted, in part, because of information received at the conference. TCID reviewed the file and then sent it with recommendations to the Office of the Solicitor for legal review. 9. August 14, 1997, TCID sent request to MSHA Office of Assessments for civil penalty assessments against individual agents. 10. November 24, 1997, proposed assessment mailed to Howell. 11. December 12, 1997, Howell advises MSHA he wishes to contest the proposed assessment. 12. January 9, 1998, Petition for Assessment of Civil Penalty filed against Howell. The Respondent bases his motion on Doyal Morgan et al, 20 FMSHRC 38 (Chief Judge Merlin, January 1998). In that case, Judge Merlin held that: "Because the record indicates no difficulties in either investigation or evaluation and because no acceptable reason has been given to explain the delay, I find that adequate cause does not exist to justify the 22 months MSHA and the Office of the Solicitor took to complete action and issue the notices of proposed assessments." Id. at 42. Accordingly, he dismissed the 110(c) proceedings against the Respondents. However, this decision, while instructive, has no precedential value under the Commission's Rules, 29 C.F.R. § 2700.72, and is distinguishable from the instant case on its facts. In this case, the Secretary has explained the delay. There are no Commission cases dealing with the Secretary's delay in notifying individuals of proposed penalties in 110(c) proceedings. However, in cases involving notification of the operator under section 105(a), the Commission has held that "in cases of delay in the Secretary's notification of proposed penalties, we examine the same factors that we consider in the closely related context of the Secretary's delay in filing his penalty proposal with the Commission: the reason for the delay and whether the delay prejudiced the operator." Steel Branch Mining, 18 FMSHRC 6, 14 (January 1996). It is apparent in examining the chronology set out above that, while the case is far from a model of efficiency, the Secretary was proceeding with due diligence. For instance, Bruce Andrews was the only special investigator in the Price, Utah, area when he was assigned the file on June 15, 1995, and he was working on several section 105(c), 30 U.S.C. § 815(c), investigations, which because of statutory time constraints take precedence over all other special investigations. Therefore, his delay, until August 24, 1995, in beginning the investigation is understandable. In addition, this case was not the only one he was working on during the period from August 1995 to March 1997. He also worked on two other 110(c) investigations and five 105(c) investigations throughout that period. In fact, while it is not the function of the Commission to tell the Secretary how to conduct her investigations, or to second guess the investigation every step of the way, it is apparent that the only period of time in this case where the delay might be questionable was between the conference and the submission of the final report to TCID. Even there, the delay was not so egregious as to require the harsh remedy of dismissal. This is particularly true when the admonition of the key Senate Committee that drafted the Act that "the Committee does not expect that the failure to propose a penalty with promptness shall vitiate any proposed penalty proceeding" is kept in mind. S. Rep. No. 181, 95th Cong., 1st Sess. 34 (1977), reprinted in 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). Viewing the period of a time between the first citation and the proposal of penalties as a whole, I conclude that the Secretary has adequately explained the delay involved. I agree with Chief Judge Merlin, when he stated in a similar case that: [I]t must be borne in mind that both the investigation and the various levels of internal review were necessary for a proper evaluation of agent liability and a knowing violation. The time used to evaluate the case could reasonably be viewed as affording some assurance that resources of both the individual and the government would not be wasted by the bringing of an unworthy case. James Lee Hancock, 17 FMSHRC 1671, 1674 (Chief Judge Merlin, September 1995). Having found that any delay in the cases has been adequately explained, the next issue is whether the Respondent has been prejudiced. The Respondent asserts that he has been prejudiced "by the loss of potential witnesses, his own fading memory, the fading memories of potential witnesses and loss or destruction of evidence" and by the fact that he is no longer employed by White Oak. I find that the Respondent has not demonstrated prejudice in this case. The allegations that memories fade, witnesses become unavailable and evidence may be lost or destroyed do not demonstrate actual prejudice. The same allegations, which are inherently true, could be made in any case. They are not, however, a basis for dismissal unless they have actually happened and are determined to have a significant effect on the presentation of the case. The Respondent has not even alleged that any of these have occurred, let alone that they will result in an inability to defend the case. Similarly, the Respondent has made no showing how, if at all, his no longer being employed by White Oak actually prejudices him. In conclusion, I find that the Secretary, having adequately explained the delays in the case, notified the Respondent of the proposed civil penalty within a reasonable time and that the Respondent has not shown that he has incurred any actual prejudice as a result of the delays. Accordingly, the Motion to Dismiss are DENIED T. Todd Hodgdon Administrative Law Judge (703) 756-6213 Distribution: James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 (Certified Mail) Denise A. Dragoo, Esq., Mara A. Brown, Esq., P.O. Box 45340, Salt Lake City, UT 84145-0340 (Certified Mail) /fb