<DOC>
[DOCID: f:yrk9939cd.wais]
DOUGLAS R. RUSHFORD TRUCKING
August 10, 2001
YORK 99-39-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 10, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. YORK 99-39-M
:
DOUGLAS R. RUSHFORD TRUCKING :
BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"). At issue is whether
Administrative Law Judge Gary Melick, upon remand for
reassessment of penalty, correctly assessed a penalty against
Douglas R. Rushford Trucking ("Rushford"). 22 FMSHRC 1127
(Sept. 2000) (ALJ). For the reasons that follow, we vacate
the judge's penalty and remand for the reassessment of the
civil penalty.
I.
Factual and Procedural Background
This is the second time that this proceeding has been
before the Commission. A summary of the background facts and
the judge's initial decision (22 FMSHRC 74 (Jan. 2000) (ALJ)) is
found in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000)
("Rushford I"). Briefly, a Rushford employee was fatally injured
when, as he was inflating a tire on a fuel truck, the wheel rim
exploded and struck him in the head. At the time, he had not
been using a stand-off inflation device. 22 FMSHRC at 599. MSHA
charged Rushford with violating 30 C.F.R. � 56.14104(b)(2), which
requires stand-off inflation devices to be used during tire
inflation to prevent injury from wheel rims by permitting
individuals to stand outside of the potential trajectory of
wheel components. The Secretary proposed a civil penalty of
$25,000. 22 FMSHRC at 599. The judge found a violation and
determined that it was significant and substantial ("S&S") and
a result of Rushford's unwarrantable failure. Id. He assessed
a $3000 civil penalty. Id.
On review, the Commission affirmed the judge's finding of
a violation and its characterization as S&S and unwarrantable,
but concluded that the judge neglected to make findings on all
of the penalty criteria set forth in Mine Act section 110(i),
30 U.S.C. � 820(i),[1] particularly with respect to the gravity
of the violation. 22 FMSHRC at 602. In our opinion remanding
this proceeding, we instructed the judge to provide a more
complete explanation of his penalty assessment. Id. We held
that, if the judge decided a substantial reduction in the
penalty proposed by the Secretary of Labor was warranted, he
must explain the rationale for the reduction, especially in
light of his finding of "gross negligence." Id. We also
directed the judge to examine Rushford's lack of history of
violations, which the Secretary claimed was a result of
Rushford's failure to file quarterly reports and consequently
could not be considered a mitigating factor in a penalty
assessment. Id. Because the record was unclear on this point,
we indicated that the judge could reopen the record to assist
in his examination of Rushford's history of violations. Id.
The judge held a supplemental hearing on August 24, 2000.[2]
On remand, the judge discussed each of the section 110(i)
criteria. He determined that an increase in the penalty he had
originally assessed was warranted because Rushford's lack of
history of violations stemmed in part from its mistaken failure
to file quarterly forms and, according to the Commission's
instructions, could not be a mitigating factor. 22 FMSHRC at
1128-30. The judge found that Rushford was very small, and that
it exhibited good faith in achieving rapid compliance by
purchasing a stand-off device and posting the requirement that
it be used at the mine. Id. at 1130-31. The judge noted the
operator's acknowledgment that a $25,000 penalty would result
in hardship, but would not cause it to cease operations. Id.
Relying on Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984), he observed that without
proof that the imposition of penalties would adversely affect an
operator's ability to continue in business, there is a
presumption that no such adverse effect would occur. 22 FMSHRC
at 1131. He determined that the violation, which caused a
fatality, was of "high gravity." Id. The judge stated that,
although the violation was the result of "high" and "gross"
negligence, he considered that Rushford's negligence resulted
from a "self-imposed ignorance" of the standard rather than any
"intentional non-compliance," making the violation arguably "not
the result of unwarrantable failure." Id. at 1130. The judge
assessed a penalty of $4000, concluding that the Secretary's
proposed penalty of $25,000 lacked analytical support and was
disproportionate to an appropriate consideration of the penalty
criteria. Id. at 1132-33.
II.
Disposition
On appeal, the Secretary argues that the judge's penalty
assessment on remand was flawed. PDR at 2.[3] She asserts that
the judge erred in determining that, because the violation was
the result of operator "self-imposed ignorance" of MSHA
standards, the operator's negligence was reduced for penalty
assessment purposes. Id. at 5-7. That determination, according
to the Secretary, is inconsistent with the judge's original
decision, the Commission's decision and Commission precedent.
Id. She contends that the judge also erred by requesting the
Secretary to provide underlying information for her penalty
assessment. Id. at 9-16. Rushford did not file a brief with the
Commission.
Although Commission judges are accorded considerable
discretion in assessing civil penalties under the Mine Act, in
reviewing a judge's penalty assessment, the Commission must
determine whether the factual findings of the penalty are
supported by substantial evidence and are consistent with the
statutory penalty criteria set forth in Mine Act section 110(i).
Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). While "a
judge's assessment of a penalty is an exercise of discretion,
assessments lacking record support, infected by plain error, or
otherwise constituting an abuse of discretion are not immune
from reversal . . . ." U.S. Steel Corp., 6 FMSHRC 1423, 1432
(June 1984).
We agree with the Secretary that the judge's negligence
determination on remand, on which he relied to reduce the
penalty (see 22 FMSHRC at 1130), conflicts with his original
decision. 22 FMSHRC 74. On remand the judge held that
Rushford's "self-imposed ignorance of the . . . standard" made
the violation "at least arguabl[y] . . . not the result of
unwarrantable failure." 22 FMSHRC at 1130. However, in his
original decision, the judge found that the violation was a
result of unwarrantable failure and "high negligence." 22
FMSHRC at 77-78. Those findings stemmed from "the evidence
that Rushford had never bothered to obtain a copy of the health
and safety regulations governing the operation of [the]
mine,"[4] that the appropriate tire inflating device was not
available at the mine, and that the mine owner "did not even
know what a stand-off inflation device was." Id. The judge
concluded: "these factors clearly support a finding of
unwarrantability and gross negligence." Id. at 78.
In Rushford I, the Commission directed the judge to explain
his reduction in the proposed penalty in light of his finding of
gross negligence. 22 FMSHRC at 602. Instead of giving the
required explanation on remand, the judge attempted to retract
his earlier gross negligence finding. However, because the
judge's original findings of gross negligence and unwarrantable
failure were not appealed to the Commission, those issues were
not subsequently remanded to him, and instead became the law of
the case. See Lion Mining Co., 19 FMSHRC 1774, 1777 (Nov. 1997)
(holding that on remand, judge could not revisit unappealed
portions of initial decision). Accordingly, to the extent
the judge's remand decision purported to retract his initial
findings of gross and high negligence, the judge erred.
Additionally, the judge's reasoning that "self-imposed
ignorance" reduces an operator's negligence conflicts with
Commission precedent. In the context of Mine Act section
110(c), 30 U.S.C. � 820(c),[5] we have held that in order to
show section 110(c) liability, the Secretary must prove that
an individual knew or had reason to know of the violative
conditions, not that the individual knowingly violated the
law. Prabhu Deshetty, 16 FMSHRC 1046, 1051-53 (May 1994).
In Deshetty, the Commission affirmed a high negligence
determination despite Deshetty's claim that he was not aware
of whether the cited conditions were prohibited under the law.
16 FMSHRC at 1053. In Roy Glenn, 6 FMSHRC 1583, 1587 (July
1984), the Commission explained that supervisors "could not
close their eyes to violations, and then assert lack of
responsibility for those violations because of self-induced
ignorance." The judge's negligence discussion also
contravenes the general principle that ignorance of the law
is no defense. See McKinnon v. Kwong Wah Restaurant, 83 F.3d
498, 509 (1st Cir. 1996) (providing that ignorance of law is
not a defense to a claim for punitive damages in a case arising
under Title VII); McGee v. C.I.R., 979 F.2d 66, 70 (5th Cir.
1992) (providing that innocent spouse relief under the Internal
Revenue Code is "designed to protect the innocent, not the
intentionally ignorant").
Because the judge's discussion of negligence in his penalty
assessment on remand is "infected by plain error," the judge, in
assessing a penalty of $4000, committed an abuse of discretion.
See U.S. Steel, 6 FMSHRC at 1432. We therefore vacate his
penalty.[6]
Having found that the judge committed legal errors in
considering the section 110(i) penalty criteria, we remand the
matter for the assessment of a new penalty amount. However, we
leave undisturbed the following findings made by the judge on
the six statutory penalty criteria. As to the history of
violations criterion, we affirm as supported by substantial
evidence the judge's findings on remand that the lack of history
of violations was due to both MSHA's error in classifying the
mine as "closed" as well as to Rushford's failure to file the
required quarterly reports with MSHA. 22 FMSHRC at 1129.
Accordingly, the lack of history of violations is neither an
aggravating nor a mitigating factor for penalty purposes.[7]
With respect to the criteria of size and good faith abatement,
the judge found, and we affirm, that Rushford is a very small
operator, and demonstrated good faith in complying with the
standard after the fatality. Id. at 1130-31. These two
findings support some mitigation of the penalty. We also leave
undisturbed the judge's finding that a penalty as high as
$25,000, the amount proposed by the Secretary, would have no
adverse effect on Rushford's ability to continue in business.
Id. at 1131. This finding on the ability to continue in
business criterion does not weigh in favor of reducing the
proposed penalty. As discussed herein, the law of the case
with respect to negligence is controlled by the judge's finding
from his original decision that the violation was a result of
"high and gross negligence." 22 FMSHRC at 77-78. This finding
on the negligence criterion serves as an aggravating factor for
penalty purposes. We also affirm the judge's finding that the
violation, "which caused the death" of the Rushford employee in
this case, was of high gravity. 22 FMSHRC at 1131. This gravity
finding also serves as an aggravating factor for penalty
purposes. Id. Finally, we find Rushford's alleged ignorance
about a protective device as well known as stand-off inflation
equipment, which is ubiquitious in any industry working with
split rim truck tires (Tr. I. at 420), truly remarkable and
unfortunate. For the benefit of the entire mining community,
it is important to emphasize that, in this case, for the lack
of a common and inexpensive safety device, a miner died.
We thus remand the assessment of the amount of the penalty
to the judge, the trier of fact in the first instance.
Sellersburg, 5 FMSHRC at 294.
III.
Conclusion
For the foregoing reasons, we vacate the judge's penalty
assessment and remand for the assessment of a civil penalty in
accordance with this opinion.
____________________________________
Mary Lu Jordan, Chairman
____________________________________
James C. Riley, Commissioner
____________________________________
Theodore F. Verheggen, Commissioner
____________________________________
Robert H. Beatty, Jr., Commissioner
Distribution
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Thomas M. Murname, Esq.
Stafford, Trombley, Owens & Curtin
One Cumberland Avenue
P.O. Box 2947
Plattsburgh, NY 12901
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1]: Section 110(i) of the Mine Act requires that, "[i]n
assessing civil monetary penalties, the Commission shall
consider" the six statutory penalty criteria:
[1] the operator's history of previous
violations, [2] the appropriateness of such
penalty to the size of the business of the
operator charged, [3] whether the operator
was negligent, [4] the effect on the
operator's ability to continue in business,
[5] the gravity of the violation, and [6] the
demonstrated good faith of the person charged
in attempting to achieve rapid compliance
after notification of a violation.
[2]: Hearings in this case were held on August 26, 1999
("Tr. I"), August 27, 1999 ("Tr. II"), October 5, 1999 ("Tr.
III") and August 24, 2000 ("Tr. IV").
[3]: The Secretary designated her petition for
discretionary review ("PDR") as her brief.
[4]: Rushford was not aware of the standard at issue
because it did not have a copy of the Code of Federal
Regulations governing its mining operation. Tr. III 109-10.
Its office manager testified that no one, including the mine
owner, asked her to obtain a copy of the regulations. Tr. III
111.
[5]: Section 110(c) cases are instructive because they
involve allegations of aggravated conduct. BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). We have also held
that highly negligent conduct "suggests an aggravated lack
of care" and unwarrantable failure. Mettiki Coal Corp.,
13 FMSHRC 760, 770 (May 1991) (citing E. Assoc. Coal Corp.,
13 FMSHRC 178, 187 (Feb. 1991)).
[6]: Because we have determined that the judge's
penalty assessment was erroneous, we do not reach the
Secretary's additional arguments challenging that penalty.
[7]: We reject the judge's implication that the
Commission should have declined review of the Secretary's
claim, that the lack of history of violations could not
be a mitigating factor, on the basis that it was a "new"
theory, raised for the first time on review. 22 FMSHRC at
1128. Under Mine Act section 110(i), the judge had to
consider and address on the record before him the history
of violations penalty criterion. Sec'y on behalf of Hannah v.
Consolidation Coal Co., 20 FMSHRC 1293, 1299-1303 (Dec. 1998)
(holding that judge must consider all six penalty criteria
and ensure that a complete record is made on all criteria);
29 C.F.R. � 2700.69(a) (requiring judge's decision to
include "all findings of fact and conclusions of law, and the
reasons or bases for them, on all the material issues of
fact, law or discretion presented by the record")
(emphasis added). The record evidence before the judge showed
that MSHA did not inspect the mine from 1993 to 1998 and
that the operator did not file quarterly reports during that
time. Tr. I 239-244, 263-276, 290-300; Tr. III 128. Mine
Act section 113(d)(2)(A)(iii), 30 U.S.C. � 823(d)(2)(A)(iii),
proscribes appealing any question of law or fact to the
Commission, over which the judge was not afforded an
opportunity to pass. Here, the judge had the opportunity
to pass on, and indeed decided, the issue of the impact
of the lack of violations on the penalty assessed, without
any examination or discussion of why Rushford had not been
inspected for five years prior to the subject violation.
22 FMSHRC at 80. The issue was before the judge and should
have been addressed in his original decision and the
Commission properly requested the judge to re-examine it
on remand.
rushford dd