<DOC>
[DOCID: f:yk9930o.wais]
PATTERSON MATERIALS CORPORATION
April 7, 1999
YORK 99-30-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868
April 7, 1999
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 99-30-M
Petitioner : A. C. No. 30-03138-05511
:
v. : Wingdale Mine
:
PATTERSON MATERIALS :
CORPORATION, :
Respondent :
ORDER ACCEPTING LATE FILING
ORDER DIRECTING OPERATOR TO ANSWER
On March 17, 1999, an order was issued directing the
Secretary to show cause why this case should not be dismissed
for failure to timely file the penalty petition.
On March 22, 1999, the Commission received the Solicitor's
penalty petition for the one violation involved in this case.
The Solicitor also filed a motion to accept late filing together
with a sworn statement. According to the Solicitor, this case
and another civil penalty proceeding involving this operator,
Docket No. YORK 98-43-M, were assigned to her. The Solicitor
states that she confused this matter with YORK 98-43-M and
inadvertently filed this case in the file folder for YORK 98-43-
M. On the evening of March 18, 1999, in the course of a routine
review of her files, the Solicitor discovered the error, and
mailed the petition and motion on the next day, March 19, 1999.
Commission Rule 2700.28(a), 29 C.F.R. � 2700.28(a), requires
that a penalty petition be filed within 45 days from receipt of
the operator's penalty contest. The contest in this case was
received on January 26, 1999, and the petition was due on March
12, 1999. Filing is effective upon mailing and the petition was
mailed on March 19, 1999. 29 C.F.R. � 2700.5(d).
Therefore, the petition was 7 days late.
On March 26, 1999, the operator filed a motion to dismiss.
The operator asserts that the reasons offered by the Solicitor do
not constitute adequate cause for the late filing of the penalty
petition. According to the operator, some sort of inevitable
outside force rather than a self-created problem, such as
misfiling, can constitute adequate cause. The operator further
contends that the Solicitor would not have been aware of the late
filing were it not for the show cause order. Finally, the
operator asserts that it will be prejudiced, along with all other
similarly situated operators, if the motion is granted because
the Secretary will be able to justify any late filing by claiming
clerical lapses or other manner of inadvertence or inattention.
The Commission permits late filing of penalty petitions
where the Secretary demonstrates adequate cause for the delay and
where the respondent fails to show prejudice from the delay. Salt
Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981).
The Secretary must establish adequate cause apart from any
consideration of whether the operator was prejudiced. Rhone-
Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).
A determination of adequate cause is based upon the reasons
offered and the extent of the delay. I have accepted late
filings where the Solicitor has claimed that delays were caused
by clerical errors in handling cases. In Apac Oklahoma, Docket
No. CENT 97-187-M, unpublished (December 16, 1997) (attached), a
petition that was 24 days late was accepted where the case was
inadvertently placed with another file and overlooked. In M.
Jamieson Company, 12 FMSHRC 901 (March 1990), a late petition was
permitted where the delay was relatively short and the file had
been erroneously placed in with another matter involving the same
operator. However, I have not permitted late filings based on
mishandling of cases where the delay was lengthy. Phelps Dodge
Morenci Inc., 1993 WL 395589 (June 1993); Lawrence Ready Mix
Concrete Corp., 6 FMSHRC 246 (Feb 1984). Nor I have accepted a
late penalty petition where the Solicitor claimed that the case
was mishandled when he had referred the matter to MSHA under the
Alternate Case Resolution Initiative (ACRI). Swenson Granite
Company, LLC, 20 FMSHRC 859 (August 1998). In Swenson, I held
that sending the case to MSHA did not excuse the Solicitor from
his responsibility of filing required pleadings.
The circumstances in this case are similar to those cited
above where late filing was permitted. The delay here was very
short and the error was discovered by the Solicitor herself. The
operator's assertion that the show cause order alerted the
Solicitor to the delay is unfounded. The Solicitor's sworn
statement that she discovered the error upon her own review of
her files is supported by the return receipt card in the
Commission's file showing that the Solicitor did not receive the
show cause order until March 24, 1999. Under these limited
circumstances, I find that the Solicitor has demonstrated
adequate cause for the short delay. In addition, I find there is
no prejudice from the seven day delay.
In light of the foregoing, it is ORDERED that the
Solicitor's late filed penalty petition is ACCEPTED.
It is further ORDERED that the operator filed its answer to
the penalty petition within 30 days of the date of this order.
Paul Merlin
Chief Administrative Law Judge
Attachment
Distribution: (Certified Mail)
Suzanne Demitrio, Esq., Office of the Solicitor, U. S. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
John F. Klucsik, Esq., Devorsetz, Stinziano, Gilberti, Heintz &
Smith, P.C., 555 East Genesee Street, Syracuse, NY 13202-2159
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Attachment
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON D.C. 20006-3868
December 16, 1997
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. CENT 97-187-M
Petitioner : A. C. No. 34-00050-05551
:
v. : East Quarry
:
APAC OKLAHOMA, INCORPORATED, :
Respondent :
ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT
On November 10, 1997, the Commission received the
Solicitor's penalty petition for the two violations involved
in this case. The Solicitor also filed a motion to accept
late filing setting forth the reason for the delay. According
to the Solicitor, the operator's penalty contest was for-
warded to the Solicitor's office on September 10, 1997.
However due to a clerical error, the case was inadvertently
placed with another file and overlooked. The Solicitor
further states that the enormous number of files handled by
the Solicitor's office also contributed to the untimely filing.
Commission Rule 2700.28(a), 29 C.F.R. � 2700.28(a),
requires that the penalty petition be filed within 45 days
from receipt of the operator's penalty contest. The contest
was received on August 28, 1997, and the petition was due on
October 14, 1997. 29 C.F.R. � 2700.8. Filing is effective
upon mailing and the petition was sent on November 7, 1997.
29 C.F.R. � 2700.5(d). Therefore, the petition was 24 days
late.
On December 4, 1997, the operator filed an answer along
with an opposition to the Solicitor's motion to accept late
filing. The operator asserts that the Solicitor 's motion
should be denied and the case dismissed because the Solicitor
failed to comply with Commission rules for filing a petition.
The operator further states that it has not been prejudiced
by the delay but that it will be prejudiced if the Solicitor
is allowed to proceed without consequences for his untimely
filing. Counsel does not allege actual prejudice from the
delay.
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the
Commission has permitted late filing of penalty petitions
upon a showing of adequate cause by the Secretary where there
has been no showing of prejudice by the operator. Salt Lake
County Road Department, 3 FMSHRC 1714, 1716 (July 1981); Rhone-
Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989). There
has been no showing of prejudice in this case. I find the
Solicitor's representations as to the inadvertent mishandling
of this case constitute adequate cause for the relatively
short delay in the filing of the penalty petition which
should not prejudice the operator's presentation of its
case. However, I take note that the Solicitor's statement
with respect to a heavy caseload is not supported by the
Commission's own records which show that the number of new
cases filed has decreased.
In light of the foregoing, it is ORDERED that the Solicitor's
late filed penalty petition is ACCEPTED.
It is further ORDERED that this case be assigned to Adminis-
trative Law Judge David Barbour.
All future communications regarding this case should be
addressed to Judge Barbour at the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-5232
Telephone No. 703-756-6201 (Fax)
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
David Rivela, Esq., Office of the Solicitor, U. S. Depart-
ment of Labor, 525 Griffin Street, Suite 501, Dallas, TX
75202
Timothy E. Bixler, Esq., APAC, Inc., Law Department, 900
Ashwood Parkway, Suite 700, Atlanta, GA 60338
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