FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
August 30, 2012
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. WEBSTER COUNTY COAL, LLC |
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BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY: Jordan, Chairman, and Nakamura, Commissioner
These consolidated civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). Chief Administrative
Law Judge Robert Lesnick denied the motions of Webster County Coal, LLC (“Webster
County”), to dismiss these proceedings on the ground that the Secretary of Labor had not
established adequate cause to file three petitions for assessment of penalty approximately 18
months beyond the 45-day due date for the petitions, set forth in Commission Procedural Rule
28, 29 C.F.R. § 2700.28.
Unpublished Order (Sept. 28, 2010) (hereinafter “CALJ Order”).
Upon the subsequent reassignment of the case, Administrative Law Judge Susan Biro denied
Webster County’s motions to certify the cases to the Commission for interlocutory review of the
late-filing issue. Unpublished Order (May 4, 2011) (hereinafter “Certification Denial Order”).
Webster County then petitioned the Commission for interlocutory review, which the Commission
granted in an order dated September 26, 2011.
Concurrent with this decision, we are issuing a decision in Long Branch Energy, 34 FMSHRC ____, Docket Nos. WEVA 2009-492-R, et al. (Aug. 30, 2012) (“Long Branch”), which also addresses the issues raised by this case. Applying our decision in Long Branch here, we affirm the judge’s order denying Webster County’s motions to dismiss and remand this case to her for further proceedings under the Mine Act.
I.
Factual and Procedural Background
Webster County’s Dotiki Mine, in Hopkins County, Kentucky, was issued a number of citations and orders by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) in December and October 2008. Certification Denial Order at 1. On November 13, 2008, MSHA issued a proposed penalty assessment for 40 citations and one order. On December 11, 2008, Webster County filed a timely notice which indicated it was contesting the proposed penalties for 21 of the citations and the order.
Under Rule 28(a), the Secretary’s penalty petitions were due on or before Monday,
January 26, 2009. It was not until the last week of July 2010, however, that the Secretary filed
three penalty petitions for the 22 proposed penalties.
Id. None of the petitions were
accompanied by the instanter motion required by Commission Procedural Rule 9(b), 29 C.F.R.
§ 2700.9(b).
On August 20, 2010, Webster County filed its three motions to dismiss. Certification Denial Order at 1-2. When the Secretary did not respond to the motions on a timely basis, on September 21, 2010, the operator requested that the Commission enter an order dismissing the proceedings, with prejudice, based on the Secretary’s failure to justify her 18-month delay in filing the penalty petitions. Id. at 2.
One day later the Secretary filed her responses to the motions to dismiss and therein included motions requesting that the Commission accept her previously late-filed penalty petitions. Id. The Secretary argued that the adequate cause standard that the Commission established in Salt Lake County Road Department, 3 FMSHRC 1714 (July 1981) (“Salt Lake”), was met in this instance. Attached in support of that explanation was an affidavit from “the Conference Litigation Secretary” for District 10, the MSHA district responsible for preparing the penalty petitions. The affidavit the Secretary submitted explained in pertinent part that:
Due to a clerical error, occasioned in significant part by the massive increase in contested assessments by coal mine operators as well as computer linkage issues between this office and the Office of Assessments, I did not become aware of the existence of the contested assessments at issue [in the three dockets] until July 15, 2010. This clerical error was brought to MSHA’s attention by Jean Ellen, of [the FMSHRC Docket Office].
S. Resp. to Mot. to Dismiss, Ex. A ¶ 3 (Decl. of Polly Wilson). The Secretary also maintained that Webster County had not been prejudiced by the late filing of the penalty petitions in this instance.
After warning the Secretary that in future cases a motion for leave to file out-of-time should accompany any late-filed penalty petition, the Chief Judge on September 28, 2010, denied the motions to dismiss. CALJ Order at 1-2 & n.1. On October 20, 2010, Webster County moved the Chief Judge to certify his order for interlocutory review by the Commission. Certification Denial Order at 2.
The cases were assigned to Judge Biro on December 1, 2010. Consolidating the three proceedings, she read Webster County’s motions for certification to center on its complaint that the Chief Judge had not adequately considered the operator’s arguments in favor of its motions to dismiss. Id. at 1, 5. Citing the inherent power of district courts to reconsider their own interlocutory orders prior to judgment, the judge treated the Webster County requests as ones for reconsideration of the Chief Judge’s order, which she denied along with the operator’s requests for certification. Id. at 5-9.
The judge primarily focused on the extent of the Secretary’s backlog of cases as the justification for the delays in the filing of the penalty petitions at issue. Id. at 6-7. Citing Commission case law with regard to both the Secretary’s obligation to propose an assessment within a reasonable time as well as the Salt Lake decision, the judge concluded that
although the delay here is lengthy and the Secretary’s explanation for its cause is not minutely detailed nor crystal clear, [I] find[] that, given the substantial precedent and the Secretary’s ever expanding caseload, the Secretary has established cause for the delay that is adequate to move on to a consideration of the resultant prejudice to [Webster County].
Id. at 7. The judge also concluded that the operator, having conceded that it could only make general allegations of having been prejudiced in the cases, had thus failed to establish prejudice, which the judge found must be pleaded with specificity. Id. at 8.
II.
Disposition
Pursuant to our briefing order in this case, Webster County’s PIR was treated as its opening brief. In it, Webster County argued that the rulings below presented four issues deserving of interlocutory review: (1) whether the Chief ALJ failed to apply the two-part Salt Lake test when he denied the operator’s motions to dismiss; (2) whether the Secretary’s case fails under the first part of the test, in that she did not establish adequate cause for the late filing of the penalty petitions; (3) whether adequate cause can ever be shown for filing a penalty petition approximately 18 months late; and (4) whether there is inherent prejudice to the operator as a result of the delays sufficient to justify dismissal of the proceedings.
In response, the Secretary, as she did in Long Branch, urges the Commission to modify the standard for accepting late-filed penalty petitions that we established in Salt Lake. The Secretary also contends that Judge Biro did not abuse her discretion in refusing to reconsider the Chief Judge’s order and dismiss the cases. The Secretary submits that a delay of 18 months does not necessarily preclude the Secretary from establishing adequate cause for the delay, and that because there is record evidence to support the judge’s finding that adequate cause was established, it must be upheld. The Secretary further argues that the judge correctly disposed of the issue of prejudice in her order.
In its reply brief, Webster County contends that the Commission should leave Salt Lake undisturbed. In addition, Webster County maintains that the Chief Judge abused his discretion in failing to consider the issue of prejudice to Webster County in his order denying the motions to dismiss. As for Judge Biro’s order, Webster County takes the position that she abused her discretion in finding that the Secretary had established adequate cause for the late filings and in failing to find that Webster County had been prejudiced by such a protracted delay.
In our decision in Long Branch, we have clarified that, under Salt Lake, while
the Secretary may not, on a “mere caprice,” ignore the Commission’s procedural rule regarding deadlines for filing penalty petitions . . . . , regardless of how important procedural regularity may be, it is subservient to the substantive purpose of the Mine Act in protecting miners’ health and safety. . . . We therefore must balance concerns for procedural regularity against the severe impact of a dismissal on the Mine Act’s penalty scheme.
In order to achieve this balance, we clarify that “adequate cause” may be found to exist where the Secretary provides a non-frivolous explanation for the delay. The Secretary’s excuse may not be facially implausible, and should be supported by evidence sufficient to establish that the delay did not result from “mere caprice” or through willful delay, intentional misconduct, or bad faith. . . .
Once the Secretary meets her burden in this regard, an operator must show at least some actual prejudice arising from the delay in order to secure a dismissal of a penalty proceeding due to a late-filed petition. Mere allegations of potential prejudice or inherent prejudice should be rejected. . . .
Long Branch, 34 FMSHRC at ____, slip op. at 8. Consequently, we review the judge’s order at
issue through this lens. The appropriate standard of review here is review for abuse of discretion
in the way of legal errors and whether the factual findings made by the judge in reaching her
conclusion is supported by substantial evidence.
See id., slip op. at 5-6.
We read the judge’s order in this case as having correctly applied Salt Lake, as
subsequently clarified by our decision in Long Branch. The Secretary explained to the judge that
the petitions for assessment of penalty were filed late due to clerical error occasioned by the large
increase in contested assessments
and computer linkage issues between MSHA’s Office of
Assessments in Arlington, VA, and its District 10 Office. Certification Denial Order at 6.
Because such an explanation is not “frivolous” or “facially implausible,” the judge was not
precluded from accepting it. See Long Branch, 34 FMSHRC at ____, slip op. at 9. These
explanations, coupled with the fact that once the clerical error was discovered, the Secretary
quickly filed the penalty petition (Certification Denial Order at 6), are enough to “establish that
the delay did not result from ‘mere caprice’ or through willful delay, intentional misconduct, or
bad faith.” See Long Branch, 34 FMSHRC at ____, slip op. at 8.
Webster County contends that the judge abused her discretion in accepting the Secretary’s explanation for the delays because the Secretary never described the “clerical error” on which she relied, nor did she explain how that error led to the delay. However, in her brief filed with the Commission, the Secretary explained that due to a clerical error, Webster’s notice contesting the proposed penalty assessment did not get transmitted electronically as it should have been from MSHA’s Office of Assessments to MSHA’s District 10 office, so the individual in the District 10 office responsible for compiling the documents needed for the penalty petitions did not know Webster County had filed the penalty contest. S. Br. at 11-12.
The operator also argues that while the explanation offered by the Secretary might excuse a short delay, it does not justify the 18-month delay that resulted here. We recognize that, if the Commission docket office has to contact the Secretary to alert her that penalty petitions are 18 months overdue, there definitely was an “error” on the part of the Secretary somewhere in the process, be it clerical or otherwise. In Salt Lake, however, where the Commission refused to dismiss the penalty proceeding, it stated that “the Secretary is engaged in voluminous national litigation and mistakes can happen.” 3 FMSHRC at 1717 (emphasis omitted). We reach a similar conclusion in this case, and thus conclude that adequate cause for the delay has been established. The judge correctly applied the law and her factual findings are supported by substantial evidence.
We also uphold the judge’s conclusion on the issue of prejudice as consistent with our treatment of that issue in Long Branch. The judge rejected the notion that the concept of “inherent prejudice” to the operator was applicable in this instance, or that it was simply enough for the operator to make general allegations of having been prejudiced by the delays at issue. Certification Denial Order at 7-8. As we state in Long Branch, it is clear that the Commission in Salt Lake, in discussing the issue of prejudice to an operator from the Secretary’s delay in filing a penalty petition, meant more than the mere “danger of prejudice,” or a concern about prejudice to the efficiency of the Mine Act enforcement process. The Commission was imposing a requirement that the prejudice must be “real” or “substantial” and demonstrated by a specific showing by the operator. See Long Branch, 34 FMSHRC at ____, slip op. at 10.
That requirement has not been met here. In arguing that it was prejudiced by the delays,
Webster County alleges potential witness memory loss. WC Reply Br. at 22. With the hearing
stage of the proceedings occurring months later than the penalty petition stage, it is premature to
speculate regarding the effect a late-filed penalty petition will have on any later hearing in these
cases. Rather, the focus at this stage of the proceedings should be on whether the operator will
suffer immediate prejudice in the next step it must take, which is the preparation and filing of its
answers to the petitions. Because here the operator made no such showing, we uphold the
judge’s conclusion on the issue of prejudice.
III.
Conclusion
For the foregoing reasons, we conclude that the judge’s order accepting the late-filed petitions did not constitute an abuse of discretion, affirm the judge’s order denying Webster County’s motions to dismiss, and remand this case to her for further proceedings under the Mine Act.
____________________________________
Mary Lu Jordan, Chairman
____________________________________
Patrick K. Nakamura, Commissioner
Commissioner Young, concurring:
I agree with my colleagues that the judge’s decision should be affirmed because it is supported by substantial evidence. I write separately, however, because I believe the judge could have made a contrary determination, given the facts in this case, and that our affirmation of the outcome here should not be mistaken for approval of the manner in which this case was presented to the Commission.
As a preliminary matter, it is worth noting that the delay in this case is extremely long –
more than 17 months beyond the due date imposed by our procedural rules.
While we have held
that the rule requiring the timely filing of penalty petitions by the Secretary should not operate as
a “procedural strait jacket[]” (Salt Lake, 3 FMSHRC at 1716), I would be hard-pressed to fault a
judge who found that the deviation from a standard established in our procedural rules, to the
degree exhibited here, required more than the desultory and evasive explanation offered by the
Secretary in this case.
It is fairly obvious from the facts of record that the case before us was simply lost. Under the circumstances the majority accurately and properly cites, it is completely understandable that this might happen. Nor do I fault the Secretary for not discovering the error without the assistance of the Commission. Something that is lost is not often found until one begins looking for it. However, once the Secretary’s agents discovered the delinquency, it was incumbent on them to provide an adequate explanation for the delay, and to seek relief as prescribed by our procedural rules.
I do not find the Secretary’s explanation to be complete or persuasive. Had I been called upon to decide this case on that basis alone, I might have reached a different conclusion than the judge. Furthermore, the Secretary did not seek permission to submit her pleadings out of time, as our procedural rules also require. See 29 C.F.R. § 2700. 9(b). Finally, when confronted with motions to dismiss the proceedings, the Secretary again failed to respond in a timely manner. Certification Denial Order at 1-2.
In sum, this enforcement action is a serious matter, and it does not appear that the Secretary’s agents recognized the gravity of the situation, or that they understood the need to treat the Commission and opposing parties with appropriate courtesy and respect. Nevertheless, I would hold it permissible for our judges to draw inferences from available evidence, as I believe the judge has done in this case. Relying on such inferences and the facts of record, I would hold that it was within the discretion of the judge to excuse the late filings based on those facts.
While we could certainly remand this case for a more satisfactory explanation of the “clerical error,” and how it was “occasioned . . . by the massive increase in contested assessments . . . as well as computer linkage issues” (see slip op. at 2), I don’t believe doing so would serve the interests of justice or judicial economy in this case. I therefore join my colleagues in affirming the decision below.
____________________________________
Michael G. Young, Commissioner
Commissioner Duffy, dissenting:
For the reasons more fully articulated in my dissent in Long Branch Energy, 34 FMSHRC ____, Docket Nos. WEVA 2009-492-R, et al. (Aug. 30, 2012) (“Long Branch”), which is also issuing today, I would vacate the judge’s order below and remand this matter for the purpose of having the Secretary explain her reasons for failing to timely file the petition for civil penalty. I do not believe that the Secretary’s invocation of the recent increase in contested penalties without further elaboration constitutes adequate grounds for failing to file a petition for 18 months when our Rule 28(a) requires the Secretary to file a petition for civil penalty within 45 days of receiving the operator’s notice of contest. As I stated in Long Branch, the contest backlog may not be frivolous, but the steps taken by the Secretary in the face of that backlog are crucial to the determination of whether the Secretary’s excuse for her excessive delay is adequate to avoid dismissal under Salt Lake. Long Branch, 34 FMSHRC at ____, slip op. at 17. Moreover, the Secretary’s excuse of a “computer linkage issue” as grounds for forgiving her exceedingly late filing is lacking in detail sufficient enough to evaluate its legitimacy. If the Secretary continues to offer that excuse, the Commission is entitled to a more thorough explanation than has been presented thus far.
In accepting the Secretary’s explanation relating to the contest backlog, the judge relied on both the two-month delay that was found acceptable by the Commission in Salt Lake due to the “extraordinarily high caseload” at the time the penalty petition in that case was due, as well as denials by Commission judges of motions to dismiss such petitions that were as much as eight months late due to the large increase in MSHA’s caseload the past few years. Certification Denial Order at 6-7.
I find that the judge misread the Commission’s decision in Salt Lake as indicating that adequate cause for a delay, of any length, in the filing of a penalty petition is established if there is evidence of a significant increase in the number of civil penalty contest proceedings during the time in question. In Salt Lake, the Commission concluded that, in seeking to file a penalty petition two months late because of her pending caseload “the Secretary [had] minimally satisfied the adequate cause standard in th[e] case.” 3 FMSHRC at 1717 (emphasis added). I do not understand the Commission in Salt Lake to have simply accepted the notion that the invocation of such phrases as “increased caseload” or “large increase in penalty contests” automatically justifies 18-month delays in filing penalty petitions.
It was also legal error for the judge to rely as heavily as she did here on such Commission cases such as Steele Branch Mining, 18 FMSHRC 6, 13-14 (Jan. 1996), and Black Butte Coal Co., 25 FMSHRC 457 (Aug. 2003). See Certification Denial Order at 6-7. In those cases, the Commission was addressing whether a proposed penalty assessment had been issued by MSHA within a “reasonable time,” as is required by section 105(a) of the Mine Act, 30 U.S.C. § 815(a). As discussed in my Long Branch dissent, the question of how long it may take the Secretary to file a relatively simple penalty petition is an entirely separate question from the reasonableness of the amount of time it might take MSHA to go through the more complex penalty assessment process. Long Branch, 34 FMSHRC at ____, slip op. at 22.
Moreover, the judge’s order as written is not supported by substantial evidence. The Commission has held that:
The substantial evidence standard of review requires a weighing of all probative record evidence and an examination of the fact finder’s rationale in arriving at the decision. Judges must sufficiently summarize, analyze and weigh the relevant testimony of record, and explain their reasons for arriving at their decision. . . . . While we have previously stated that we do not lightly overturn a judge’s factual findings and credibility resolutions, neither will we affirm such findings if there is no evidence or dubious evidence to support them.
Consolidation Coal Co., 11 FMSHRC 966, 974 (June 1989) (citations omitted) (emphasis added).
With regard to the explanation for the delays accepted by the judge in this case, when the Commission finds that it has to contact the Secretary to alert her that penalty petitions are 18 months late, there surely has been an “error.” The Commission acknowledged in Salt Lake that errors would occur from time to time, stating that “the Secretary is engaged in voluminous national litigation and mistakes can happen.” 3 FMSHRC at 1717 (emphasis in original).
That does not mean, however, that the judge is bound to accept without question a conclusory statement tying an 18-month failure to file three penalty petitions to the increased caseload, which the judge did in this instance. Acceptance of such a “bare bones” explanation by the judge contradicts what the Commission stated in Salt Lake:
In order to help strike a proper balance and to insure that the Secretary does not ignore section 105(d)’s injunction to act “immediately,” we hold that if the Secretary does seek permission to file late, [s]he must predicate [her] request upon adequate cause. Such a requirement will guard against cases of abuse and also comports with analogous leeway extended to private litigants before the Commission.
Id. at 1716 (citations omitted).
Accordingly, I would vacate the order denying the operator’s motion to dismiss, and remand this proceeding to the judge to obtain a more complete statement from a representative of the Secretary that provides a more thorough and understandable reason for the 18-month delay beyond the summary excuse provided in the affidavit of the District 10 CLR secretary. If the Secretary is going to seek permission to file three penalty petitions so late, it is incumbent upon her to supply a witness who can take responsibility for the lack of oversight that clearly contributed to the length of the delays.
This is not necessarily to say that the justifications offered by the Secretary are not the type that can sufficiently excuse an 18-month failure to act. The explanation on remand does not need to be very long to address the most pertinent issues: how the increase in the civil penalty caseload resulted in three cases essentially “falling through the cracks” in the system, and what has been and is being done by MSHA both nationally and in its district offices to prevent a reoccurrence of such errors. Without such an explanation, however, the impression is left that the delays in this case were not actually due to the increase in the number of cases.
The explanation provided on remand should also expand upon the “computer linkage issues” that the Secretary offers as additional explanation for the delays. The judge essentially ignored this aspect of the CLR secretary’s explanation, but if on remand the Secretary is going to continue to rely on such an excuse, it is necessary that she provide the judge a greater understanding of what these computer linkage issues were, and that MSHA has resolved them.
While I would not go so far as to say that the obligations the Commission has, in certain cases, imposed on operators seeking relief from default under section 105(a) are necessarily and fully applicable to the Secretary when she fails to meet the “immediately” requirement under section 105(d), given the desire expressed in Salt Lake that any “leeway” granted the parties be at least roughly “analogous,” I do not find that the Secretary offered enough evidence below to establish adequate cause under Salt Lake. As noted in Salt Lake, the Commission has recognized that mistakes can happen, and that mistakes, once made, may not be caught for quite some time. When that happens, be it by an operator or by the Secretary, the Commission, in its role as an independent agency, should require either party to sufficiently explain how the mistake occurred, why it was not caught sooner, and what is being done so that it does not happen again. Because the judge did not do so here, her order must be vacated and remanded.
With respect to the issue of prejudice, I do not believe that a given length of delay should be considered “inherently” prejudicial to an operator, since each Mine Act case will depend on a different mixture of evidence. For instance, a violation of an MSHA record-keeping regulation may be established simply by documents. In contrast, a violation of a substantive safety standard may be heavily dependent upon witness testimony, and thus rely in large part on the memory of one or more witnesses. Given these very different scenarios, I would be loath to conclude that an 18-month delay in filing a penalty petition should be considered to be per se prejudicial.
Moreover, when the hearing stage of a proceeding usually occurs months after a penalty petition is filed, it is premature to speculate regarding the effect a late-filed penalty petition will have on the later hearing in the case. Rather, the focus at this stage of the proceedings should be on whether the operator will suffer immediate prejudice in the next step it must take, which is the preparation and filing of its answer to the petition. Because here the operator made no such showing, I would uphold the judge’s conclusion on the issue of prejudice at this stage of the proceedings.
Of course, the issue of prejudice to the operator flowing from the 18-month delay will
remain a live one throughout the proceeding, and Webster County is free to raise the issue of
prejudice in the more concrete setting of a pending hearing on the substance of the citations and
order.
Accordingly, I would vacate the order and remand for further proceedings.
____________________________________
Michael F. Duffy, Commissioner
Commissioner Cohen, dissenting:
Under Commission Procedural Rule 28, the Secretary’s petition for assessment of penalty is to be filed with the Commission within 45 days of MSHA’s receipt of an operator’s contest of a proposed penalty assessment. 29 C.F.R. § 2700.28. I am dissenting in this case because I do not believe that the Secretary’s explanation of why the petitions in these cases were 18 months late was sufficiently complete to enable the judge to determine whether the Secretary had established adequate cause as required by Salt Lake County Road Department, 3 FMSHRC 1714 (July 1981).
In Long Branch Energy, 34 FMSHRC ____, Docket Nos. WEVA 2009-492-R, et al. (Aug. 30, 2012) (“Long Branch”), also issued today, the Commission has clarified the legal standard of “adequate cause” in Salt Lake as follows:
In order to achieve this balance, we clarify that “adequate cause” may be found to exist where the Secretary provides a non-frivolous explanation for the delay. The Secretary’s excuse may not be facially implausible, and should be supported by evidence sufficient to establish that the delay did not result from “mere caprice” or through willful delay, intentional misconduct, or bad faith.
34 FMSHRC at ____, slip op. at 8. In my opinion, because of the absence of any detail, the explanation provided by the Secretary for the delay in filing petitions in these cases fails to meet this standard.
The Secretary’s Response to Motion to Dismiss and Secretary’s Motion to Permit Late
Filing is supported, factually, only by the “Declaration of Polly Wilson,” the Conference
Litigation Secretary for MSHA Coal District 10, dated September 22, 2010. The Secretary’s
entire explanation is contained in two sentences of Ms. Wilson’s Declaration:
Due to a clerical error, occasioned in significant part by the massive increase in contested assessments by coal mine operators as well as computer linkage issues between this office and the Office of Assessments, I did not become aware of the existence of the contested assessments at issue in Docket Nos. KENT 2009-422, KENT 2009-423 and KENT 2009-545, until July 15, 2010. This clerical error was brought to MSHA’s attention by Jean Ellen, of the Federal Mine Safety and Health Review Commission, on the same date.
These two sentences did not provide sufficient information to the judge. There was no information provided – as there was in Long Branch regarding MSHA District 4 – about the increase in contested assessments in District 10 during the relevant period, and how it impacted District 10’s ability to prepare petitions as required by Commission Rule 28.
Nor was there any explanation whatever of the “computer linkage” issues. Apparently, as indicated in the Secretary’s brief, there was some problem in the electronic transmission of notice of the operator’s contests in these cases from MSHA’s Office of Assessments to District 10. Consequently, the officials in District 10 responsible for preparing the Rule 28 petitions were unaware of the need to do so until Jean Ellen, head of the Commission’s docket office, made inquiries to MSHA. The information provided by the Secretary does not inform the judge what the computer linkage problem was, how many contests by operators (Webster County and others) were affected by the problem, whether it required some type of fixing and, if so, how and when the fixing was done.
In my view, the explanation in this case is frivolous. It does not, in terms of the Long
Branch standard, provide “evidence sufficient to establish that the delay did not result from
‘mere caprice’ or through willful delay, intentional misconduct, or bad faith.” 34 FMSHRC at
____, slip op. at 8. Ultimately, it may well be that the Secretary’s reasons for failing to file these
petitions were non-frivolous. However, the explanation itself was frivolous.
The Secretary’s failure in this case to file a timely Rule 28 petition is analogous to an operator’s failure to file a timely contest of a proposed penalty assessment under section 105(a) of the Mine Act, 30 U.S.C. § 815(a). In such cases, where operators petition the Commission for relief in the form of reopening the case, the Commission requires a “sufficiently detailed explanation” of the cause of the failure to enable the Commission to determine whether good cause exists for excusing it. Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008) (operator’s explanation for the failure was that it “was due to clerical error”); Atlanta Sand & Supply Co., 30 FMSHRC 605, 606 (July 2008) (operator’s explanation was that there was “an unintentional error in the transfer of the Proposed Assessment from Atlanta Sand to counsel”).
Just as the Commission requires operators to submit a “sufficiently detailed explanation” in cases where the operator has failed to file a timely contest of a proposed assessment, so the Commission should require the Secretary to furnish a sufficiently detailed explanation for her failure to timely file a Rule 28 petition. Where the explanation provided is as lacking in detail as it was here, it is not a matter of the judge’s discretion whether or not to accept it. Rather, it is a matter of law that the explanation was inadequate.
Therefore, I would vacate the judge’s decision and remand the case to the judge to offer
the Secretary another opportunity to fully explain, with supporting affidavits, the reasons why the
petitions in this case were filed 18 months late.
____________________________________
Robert F. Cohen, Jr., Commissioner
Distribution:
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Michael T. Cimino, Esq.
Jackson Kelly, PLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
K. Brad Oakley, Esq.
Jackson Kelly PLLC
175 E. Main St. Suite 500
Lexington, KY 40507
Administrative Law Judge Susan Biro
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021