Cactus Canyon Quarries of Texas, Inc.

Plain-English summary

Cactus Canyon Quarries asked the Commission to review an administrative law judge's ruling allowing the Secretary to file penalty petitions after the 45-day period in Rule 28(a). Judge Irwin Schroeder denied certification because the issue involved factual discretion rather than a controlling question of law, and interlocutory review would delay rather than advance the proceedings. The judge preserved the issue for any later appeal and planned a consolidated hearing on the pending penalty cases.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.28(a) and 2700.76
• Outcome: The motion for interlocutory review was denied.
• Key point: A discretionary decision on whether to allow a late filing is generally factual, not a controlling legal question suitable for interlocutory review.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                             OFFICE OF ADMINISTRATIVE LAW JUDGES
                                     2 S K YL IN E , 10 th F LO O R
                                      5203 LEESBURG PIKE
                                 FALLS CHU RCH, VIRGINIA 22041


                                      February 1, 2002

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2001-363-M
Petitioner, : A. C. No. 41-00009-05552
:
v. : Docket No. CENT 2001-364-M
: A. C. No. 41-00009-05553
CACTUS CANYON QUARRIES :
OF TEXAS, INC., :
Respondent. : Mine: Fairland Plant & Quarry

                     ORDER DENYING MOTION TO CERTIFY
                         INTERLOCUTORY REVIEW

    This case is now before me on Respondent’s Motion to Certify a Ruling for Interlocutory

Review by the Commission under Rule 76. The issues Respondent seeks to have the Commission
review arise out of my decision to permit the Secretary to file these Petitions after the lapse of the
45 day period following notice of contest provided in Rule 28(a). My Order granting leave to file
beyond the 45 day period was dated December 12, 2001. Respondent filed a motion to reconsider
by Order and that motion was denied on December 28, 2001. Respondent filed motions addressed
both to me and to the Commission seeking interlocutory review of my decision to permit the late
filing of these Petitions. Counsel for the Secretary has now filed (January 25, 2002) a response to
these motions for interlocutory review.

                                           Analysis

    Under Rule 76, a Motion for Certification of Interlocutory Review poses two questions for

the hearing Administrative Law Judge; (1) does the ruling sought to be reviewed involve a
controlling question of law, and (2) will immediate review materially advance the final disposition
of the proceeding. For reasons discussed at greater length below, my answer to both questions is
negative.

    In a pedestrian sense, any issue that has the potential to end a controversy can be said to be

a “controlling” issue. In that sense, the Respondent appears to argue that the issue of timing of the
filing of the Petition is a controlling issue which ought to be resolved in it’s favor before going on
to the merits of the various citations of safety violations contained in the Petitions. What the
Respondent fails to note in Rule 76 is the requirement that the issue be an issue of law, i.e. a
question of interpretation of the law in the facts of the case. In this instance, no question of law is
presented. It is clear that an Administrative Law Judge has great factual discretion in determining

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whether to grant leave to file a Petition beyond the period established by the Rules of the
Commission. While there are cases and opinions on the exercise of that discretion, it remains a
factual rather than a legal issue and thus is not appropriate for interlocutory review. The point, if
it has merit in the eyes of a subsequently reviewing body, has been preserved for any necessary
subsequent appeal.

    Further, it is my opinion that interlocutory review of this question would not materially

advance the final disposition of this proceeding. Interlocutory review would, on the contrary,
greatly delay the final disposition of this proceeding. Counsel for the Secretary has contributed a
much more detailed account of the reasons for the small delays experienced in this case. While that
detail was not necessary to convince me that adequate reasons for the delay existed, they make it
clear to me that the probability of dismissal for delay under Rule 28 is so small as to be nonexistent.
Affording the Respondent an interlocutory review at this time would serve no useful function.

    I have pending before me four Petitions for Assessment of a Civil Penalty against Cactus

Canyon Quarries, i.e. these two and two others. It is my intention, as soon as the issue of
interlocutory review is resolved by the Commission, to conduct a prehearing conference in Austin,
Texas, on all of these cases then pending before me in order to expedite a consolidated hearing on
the merits. Further delays will be reduced to a bare minimum.

   Therefore, it is

   ORDERED that the Motion for Interlocutory Review is denied.




                                           Irwin Schroeder
                                           Administrative Law Judge
                                           703-756-5232

Distribution: (Certified Mail)

Andy Carson, Esq., 7232 Co. Rd 120, Marble Falls, Texas 78654

Christopher V. Grier, Esq., Office of the Regional Solicitor, Department of Labor,
525 S. Griffin Street, Suite 501, Dallas, Texas 75202

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