November 1, 2012
The Commission declines to enforce its own deadline for MSHA to file petitions for assessment.
by K. Brad Oakley
In the June 7, 2012, edition of Rock Law, my colleague Christopher Peterson began a discussion of whether the Federal Mine Safety and Health Review Commission (Commission) would enforce its own rules requiring the Mine Safety and Health Administration (MSHA) to file a petition for assessment for civil penalties within 45 days of an operator contesting the proposed assessment. This issue came to light as a result of the administrative law judge’s (ALJ) decision in Long Branch Energy, rejecting MSHA’s excuse that the so-called “backlog” of contested penalty cases and lack of clerical personnel to process the backlog were adequate causes for delays of up to 11 months in filing the subject petitions for assessment.
More specifically, the ALJ in Long Branch held that the controlling legal precedent was a 1981 decision by the Commission in the Salt Lake County Road Department case. In Salt Lake, the Commission held that MSHA must show adequate cause for a late-filed petition for assessment before the operator is required to show prejudice by the delay. Based upon this well-settled precedent, the ALJ determined that MSHA had failed to show adequate cause for the late filings and dismissed the petitions for assessment of civil penalties against Long Branch totaling $75,762. In so holding, the ALJ found that MSHA’s general statements about the nature of the backlog, high workload, and lack of personnel did not address the specific circumstances of why the Long Branch petitions for assessment were not timely filed. Essentially, the ALJ rejected MSHA’s “we’re too busy to follow the rules” defense.
The ALJ also justified his dismissal of the petitions because the late filings frustrated MSHA’s own regulations, noting that “…the enforcement of penalties primarily promotes the welfare of miners by serving as a deterrent against future violations, and this deterrent effect must be balanced against the recognized public interest in expeditiously resolving contested penalties…” Unsurprisingly, MSHA appealed the ALJ’s decision to the Commission for further review.
On Aug. 30, 2012, the Commission rendered its decision on MSHA’s appeal of the ALJ’s Long Branch decision. In its decision, the Commission first rejected MSHA’s contention that the Salt Lake test should be modified to take into account, in all instances, the extent to which an operator has shown prejudice as a result of the late filing. For example, under the modified Salt Lake test endorsed by MSHA, a weak reason for the delay in filing a petition for assessment could justify allowing the tardy filing if the operator could not show any prejudice caused by the delay.
Instead, the Commission held that it was appropriate to “clarify” its ruling in Salt Lake in order to determine whether the ALJ properly dismissed the petitions for assessment. First, the Commission stated that its Salt Lake decision “identifies and prioritizes the interests implicated by the case before us and provides guidance for determining how judges should proceed when those interests collide.” The Commission then stated that “[a]t its core,” the Salt Lake decision “reflects an ‘overriding concern with enforcement.’” Therefore, in the current Commission’s view, Salt Lake “clearly established that Commission enforcement of the filing time limits is a secondary consideration to the primary purpose of section 105(d), i.e., ensuring prompt enforcement of the Act’s penalty structure.” Accordingly, the Commission held that it must “balance concerns for procedural regularity against the severe impact of a dismissal on the Mine Act’s penalty scheme.”
To achieve this balance, the Commission held that adequate cause for the late filing of a petition for assessment exists where MSHA provides a “non-frivolous” reason for the delay. Specifically, the Commission held that MSHA’s excuse may not be “facially implausible” and should be supported by evidence showing that the delay was not the result of “mere caprice” or the result of MSHA’s “willful delay, intentional misconduct, or bad faith.” If MSHA can meet this minimal burden, the operator must then establish “at least some actual prejudice arising from the delay” before a dismissal is justified. Any claims of potential or inherent prejudice caused by the delay will be rejected.
Then, using its “clarified” Salt Lake test, the Commission considered whether the ALJ had correctly concluded that MSHA had not established adequate cause for the late filings against Long Branch. Citing the impact of increased enforcement measures by MSHA in District 4 (where Long Branch was located), the Commission credited MSHA’s evidence showing that District 4 was simply “overwhelmed” by the number of petitions for assessment that needed to be filed. The Commission then concluded by holding that MSHA’s delay in filing the petitions for assessment against Long Branch were adequately explained by the “unusual circumstances that existed during the relevant time period.” Consequently, the Commission reversed the ALJ’s dismissal of the petitions for assessment against Long Branch and remanded the cases to the ALJ for a resolution on the merits.
Based upon the Commission’s decision in Long Branch, the industry can safely assume that nearly any justification MSHA provides for a late filing will be found to be adequate cause. Thus, the answer to the question posed by my colleague in the June edition of Rock Law — will the Commission hold MSHA’s feet to the fire to timely petitions for assessments — is a resounding “no.”
K. Brad Oakley is a member of Jackson Kelly PLLC’s Lexington, Ky., office, where he works with the firm’s Occupational Safety and Health Practice Group. He can be reached at 859-255-9500 or via email at firstname.lastname@example.org.