Judge McCarthy ruled that to survive a motion to dismiss, MSHA must establish adequate cause for the late filing. If adequate cause is not established, the case must be dismissed and the issue of prejudice to the operator is not decided. Only after a finding of adequate cause is established by MSHA does the issue of prejudice become relevant (Id. at 1970).

In Long Branch Energy, Judge McCarthy found that MSHA’s general statements about the nature of the backlog, high caseload, and lack of personnel did not address the specific circumstances of the four petitions at issue. Although McCarthy recognized that enforcement of the 45-day rule for filing might be unreasonable under the current caseload, he ruled that accepting petitions filed seven to 11 months late without a showing of adequate cause would amount to a carte blanche to MSHA to avoid the prescribed filing deadlines (Id. at 1976). Judge McCarthy granted Long Branch Energy’s motion to dismiss the four petitions.

MSHA appealed the decision to the Commission, and the appeal was argued on April 17, 2012. There are approximately 170 other dockets on appeal to the Commission in cases where the administrative law judge found the generalized representations of MSHA about the backlog to be “adequate cause.” The Commission has stayed those appeals pending its decision in Long Branch Energy. Hopefully, the Commission will render a decision this calendar year.

MSHA seems perfectly willing to hold mine operator’s feet to the fire of procedural rules while excusing its own inability to meet the requirements of the Commission rules. A decision by the Commission affirming ALJ McCarthy’s decision will be a wake-up call for MSHA. It’s about time.

Christopher G. Peterson is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or cgpeterson@jacksonkelly.com.