Secretary of Labor v. Cactus Canyon Quarries Inc.

Plain-English summary

Cactus Canyon asked to dismiss its penalty case because the Secretary did not file the petition within the usual 45-day period after the operator's contest. Before the petition was filed, the Chief Judge had found good cause and extended the deadline to January 18, 2022; the Commission declined review of that extension, and a later court appeal was dismissed. Judge Richard Manning held that he would not revisit the coordinate judge's order under law-of-the-case principles, especially without extraordinary circumstances or actual prejudice. Electronic records showed that the Secretary filed the petition with the Commission and served the operator by email on the extended deadline. The summary-decision motion was denied, and the penalty case continued.

Decision snapshot

• Cited authority: Commission Procedural Rules 5, 7, 28, and 67
• Outcome: Cactus Canyon's motion for summary decision and dismissal was denied.
• Key point: A penalty petition filed and served by the deadline in a valid extension order was timely, and the 45-day rule did not support dismissal on a technicality.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721 19 th Street, Suite 443

Denver, Colorado, 80202-2500

Telephone: (303) 844-5267

[email protected]

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA),

Petitioner

v.

CACTUS
CANYON QUARRIES INC,

Respondent

CIVIL PENALTY PROCEEDING

Docket
No. CENT 2022-0010-M

A.C. No.
41-00009-542457

Fairland
Plant & Qys

ORDER DENYING RESPONDENT’S MOTION FOR
SUMMARY DECISION

Before:
 Judge Manning

This case is before me upon a
petition for assessment of a civil penalty under section 105(d) of the Federal
Mine Safety and Health Act of 1977. On May 6, 2022, Respondent, Cactus Canyon
Quarries Inc. (“Cactus Canyon”), filed a Motion for Summary Decision (“CCQ
Mot.”). Subsequently, on August 15, 2022, the Secretary filed his Objection and
Response to Respondent’s Motion for Summary Decision (“Sec’y Resp.”). [1]
I find summary decision is inappropriate and DENY Respondent’s motion.

Although the procedural posture of
this case is long and complicated, for purposes of this order only certain
events need be mentioned. On October 4, 2021, Respondent mailed its Notice of
Contest to MSHA. Subsequently, on November 26, 2021, i.e., more than 45 days
after receipt of the Notice of Contest, the Secretary filed a Motion for
Extension of Time to File Initial Pleading citing the need for “additional time
to allow the parties to thoroughly explore settlement in this matter.” On
December 1, 2021, the Commission’s Chief Administrative Law Judge (the “Chief
Judge”) found that the Secretary had shown good cause and issued an order
granting the Secretary’s motion and affording the Secretary until January 18,
2022, to file the initial pleading (the “Chief Judge’s Order”). After first
asking for reconsideration of the Chief Judge’s Order, which was not granted,
Respondent filed a petition for discretionary review on December 23, 2021, challenging
the validity of the Chief Judge’s Order and asking that the case be dismissed. On
January 4, 2022, the Commission issued a notice stating that “after consideration
by the Commissioners, no two Commissioners voted to grant the petition [for
discretionary review] or to otherwise order review.” Finally, on January 18,
2022, the Secretary electronically filed the petition for assessment of penalty
( the “penalty petition”) with the Commission and served the same upon
Respondent via email.

Cactus Canyon moves the court to
vacate the citations at issue and dismiss the penalty petition with prejudice. CCQ
Mot. 12. Respondent argues the Commission’s decision in Salt Lake County Road
Dep’t. , 3 FMSHRC 1714 (July 1981), as well as other Commission case law, constitute
“Black Letter Law” that “when the Secretary is late-filing a petition, the
Secretary must file the petition to institute the proceeding and file a motion
for forgiveness / excuse showing good cause to excuse the late filing.” Respondent
takes issue with the validity of the Chief Judge’s Order and argues the Secretary
failed to timely file and serve the penalty petition and/or properly show good
cause for why the late filing should be excused. [2]

The
Secretary, in his response, argues that the penalty petition was timely filed and
served pursuant to the deadline set forth in the Chief Judge’s Order. Sec’y
Resp. 10-11. The Secretary asserts it was within the Chief Judge’s discretion
to set a new deadline, which the Secretary met by electronically filing the
penalty petition with the Commission and serving the penalty petition on
Respondent via email on January 18, 2022. Respondent is not entitled to summary
decision as a matter of law because there is no issue of material fact that the
Secretary filed the petition and served Respondent by the deadline set by the
Chief Judge.

I will not revisit the validity of
the Chief Judge’s Order. The Chief Judge had jurisdiction and control over this
case when Respondent filed its Notice of Contest on October 4, 2021, until
February 14, 2022, when the case was assigned to me. [3]
While the case was under his jurisdiction and control, the Chief Judge, citing
“good cause having been shown,” saw fit to grant the Secretary’s motion for an
extension of time to file the penalty petition. Although Respondent continues
to dispute the validity of the Chief Judge’s Order, the issue was appealed and,
on January 4, 2022, the Commission declined to grant the petition for
discretionary review and the Fifth Circuit subsequently dismissed Respondent’s
appeal. Unlike the Commissioners, I do not sit in a position of review. Accordingly,
I decline to review the Chief Judge’s order.

Moreover, principals of the “law of
the case doctrine” dictate that, absent extraordinary circumstances, courts should
be loathe to overturn prior decisions of their own or those of a coordinate
court, i.e., the Chief Judge. Christianson v. Colt Industries Operating
Corp. , 486 U.S. 800, 817 (1988). [4]
Here, nothing in the record suggests extraordinary circumstances exist that
would warrant revisiting the Chief Judge’s determination that good cause
existed for granting an extension of time to file beyond the 45-day limit set
forth in Commission Procedural Rule 28(a). [5]

Commission case law makes clear that
the 45-day time limit is not a statute of limitations. Salt Lake at
1715-1716; Rhone-Poulenc of Wy. Co. , 15 FMSHRC 2089, 2092-2093 (Oct.
1993). Further, when adequate cause is shown for a delay in filing a penalty,
absent evidence of actual prejudice, procedural irregularities are subservient
to the substantive purpose of the Mine Act to protect miners. Long Branch
Energy , 34 FMSHRC 1984, 1990-1991 (Aug. 2012) (“The requirement in Rule
28(a) to file a penalty petition within 45 days cannot be viewed as an avenue
for an operator to seek dismissal on a mere technicality.”)

Here, the Chief Judge found good
cause to grant the Secretary’s motion for an extension of time to file the
penalty petition. Moreover, Respondent alleged no actual prejudice. Given the
absence of extraordinary circumstances or actual prejudice, I see no reason to
revisit what was already decided by the Chief Judge and unsuccessfully
appealed.

Given that the Chief Judge’s order
must stand, the only questions that remain are whether the Secretary timely filed
the penalty petition and served Respondent by the date set forth in the Chief
Judge’s Order.

The Secretary timely filed the
penalty petition with the Commission. Commission Procedural Rule 5 states that
documents filed via electronic transmission are “effective upon successful
receipt by the Commission.” 29 C.F.R. § 2700.5(f). An email dated January 18, 2022,
from FMSHRC’s eCMS system confirms the penalty petition was timely received by
the Commission. Sec’y Resp. Ex. I. I find that the Secretary timely filed the
penalty petition in accordance with deadline set forth in the Chief Judge’s Order.

The Secretary timely served the
penalty petition upon Respondent. Commission Procedural Rule 7 permits service
via electronic mail and provides “service is effective upon successful receipt
by the party intended to be served.” 29 C.F.R. § 2700.7(c). The Certificate of
Service included with the penalty petition indicates the Secretary emailed the
penalty petition on January 18, 2022. Moreover, an email dated the same date
confirms the Secretary sent a digital copy of the penalty petition to
Respondent. [6]
Sec’y Resp. Ex. J. I find that the Secretary timely served the penalty petition
in accordance with deadline set forth in the Chief Judge’s Order.

For the reasons stated above,
Respondent’s Motion for Summary Decision seeking dismissal of this case is DENIED . [7]

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution
(First Class Mail and email):

Chris
Lopez-Loftis, Esq., Office of the Solicitor, U.S. Department of Labor, MSHA,
525 S. Griffin Street, Suite 501, Dallas, TX 75202 ( [email protected] )

Andy
Carson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654 ( [email protected]   [email protected] )

[1] At the time
Respondent filed its motion the case was stayed pending an appeal to the Fifth
Circuit Court of Appeals. On July 18, 2022, the Fifth Circuit dismissed the
appeal for lack of subject matter jurisdiction. Subsequently, I lifted the stay
and ordered the Secretary to file his response to the motion by no later than
August 15, 2022.

[2] Although other
issues, such as the appropriateness of the previous stay and my ability to rule
on the motion during the pendency of the appeal, were raised in Respondent’s
motion, those issues are moot and not addressed in this order.

[3] The Secretary
cites the Supreme Court’s decision in Thunder Basin Coal Co. v. Reich ,
510 U.S. 200, 209 (1994), for the proposition that “actions before the
Commission are initiated not by the Secretary but by a mine operator who claims
to be aggrieved.” I previously found Commission jurisdiction began when the
Notice of Contest was filed. Cactus Canyon Quarries Inc., 44 FMSHRC 353, 354
(April 2022) (ALJ). Accordingly, the Chief Judge properly had jurisdiction over
this case at the time he issued his December 1, 2021 order.

[4] The law of the case doctrine
“expresses the practice of courts generally to refuse to reopen what has been
decided[.]” Christianson at 817 (quoting Messenger v. Anderson ,
225 U.S. 436, 444 (1912)). I note the Sixth Circuit Court of Appeals has held
that “a transferee judge ought as a practical matter to accord considerable
deference to the judgment of the transferor court[,]” In re Upjohn Co.
Antibiotic Cleocin Prods. Liab. Litig. , 664 F.2d 114, 120 (6th Cir. 1981),
and as “[a]pplied to coordinate courts, the [law of the case] doctrine is a
discretionary tool available to a court in order to promote judicial
efficiency. As such, a decision to reconsider a previously decided issue will
be deemed erroneous only if it is shown that the transferee court abused its
discretion.” U.S. V. Todd , 920 F.2d 399, 403 (6th Cir. 1990).

[5] Commission
Procedural Rule 28(a) states that “[w]ithin 45 days of receipt of a timely
contest of a proposed penalty assessment, the Secretary shall file with the
Commission a petition for assessment of penalty.” 29 C.F.R. § 2700.28(a).

[6] The record
demonstrates that on January 18, the Secretary emailed the penalty petition to
the official email address for Respondent and also emailed a copy to Andy
Carson, counsel for Respondent.

[7] Commission
Procedural Rule 67(b) states that the Court may grant summary decision where
the

“entire
record…shows: (1) [t]hat there is no genuine issue as to any material fact; and
(2) [t]hat

the
moving party is entitled to summary decision as a matter of law.” 29 C.F.R.
§2700.67(b).