Secretary of Labor (MSHA) v. Turner Brothers Inc. (Commission decision, April 24, 1984)

Plain-English summary

Turner Brothers sought review of an administrative law judge's civil penalties, including an extra $600 imposed because the judge viewed the operator's conduct in the litigation as disrespectful. The Commission dismissed the company's challenge to $5,100 in penalties after it missed the briefing deadline and did not file the ordered motion for leave to submit a late brief. Turner did submit a late document it called a brief, but it largely repeated its petition. The Commission nevertheless retained the question of the extra $600 on its own initiative. The Commission vacated that amount, holding that the Mine Act's penalty criteria did not permit the judge to add penalties for the operator's and counsel's attitude. It said the Commission's disciplinary procedure, rather than additional Mine Act penalties, was the proper route for alleged misconduct. The $5,100 assessment remained the final order.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(i), civil penalty criteria; 29 C.F.R. § 2700.80, disciplinary procedure.
• Outcome: Appeal of $5,100 dismissed for lack of prosecution; additional $600 vacated.
• Key point: Litigation conduct could be addressed through disciplinary rules, but it could not support an extra civil penalty outside the Mine Act's penalty criteria.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. TURNER BROTHERS
DDATE:
19840424
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. April 24, 1984 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

v. Docket No. CENT 83-12

TURNER BROTHERS INC.

DECISION
The operator's petition for discretionary review of the administrative law judge's decision in this matter was granted on December 29, 1983. 30 U.S.C. $ 823(d)(2)(Supp. V 1981). The operator's petition raised two issues: whether a Commission administrative law judge has the authority to assess a penalty greater than that proposed by the Secretary of Labor, 1/ and whether a Commission administrative law judge has the authority to assess additional penalties based on a perceived "cavalier attitude" and "contempt" that the operator and its counsel displayed in the litigation of the matter before the administrative law judge. These latter conclusions by the judge were based on the respondent's failure to appear at the scheduled hearing or otherwise notify the judge of its intention not to appear. 2/ Pursuant to the Commission's Rules of Procedure, the failure to file a brief in support of a petition for review that has been granted can result in dismissal of the proceeding. 29 C.F.R.
$ 2700.8(b) and .72(a). Because the operator failed to file a timely brief, the Commission issued an order advising the operator of the possible effect of its failure to comply with the Commission's rules, and specifically ordering the operator to submit its brief and a motion for leave to file the brief out of time with an explanation for the delay. The operator's response to the Commission's order was to submit a "brief." 3/ Contrary to the Commission's order, a motion to accept the late-filed brief was not filed.
____
1/ It is well established that, in a case contested before the Commission, the Commission and its judges are not bound by the penalty assessment regulations adopted by the Secretary. "The determination of the amount of the penalty that should be assessed for a particular violation is an exercise of discretion by the trier of fact." Sellersburg Stone Co., 5 FMSHRC 287 (March 1983), pet. for review filed No. 83-1630 (7th Cir. April 8, 1983). 2/ The judge noted that the operator's counsel had also failed to appear at another hearing before a different Commission judge one week prior to the hearing set in this case. 3/ The operator's submission was a four paragraph, one and one-half page restatement of its petition for review.
~806
Due to the operator's failure to comply with the Commission's rules and orders, and consequent failure to prosecute this matter, the operator's petition for discretionary review is dismissed in part. Because the second issue raised in the petition relates to a matter which is "contrary to law or Commission policy," 30 U.S.C.
$ 823(d)(2)(B)(Supp. V 1981), and for which we have an independent concern, we have retained jurisdiction in part. The judge's decision contains an assessment of a total of $600 in additional penalties based on the "cavalier attitude" and "contempt" that the operator and its counsel displayed towards the Mine Act, the Department of Labor's Mine Safety and Health Administration inspectors, and the Commission. While we may well empathize with the judge's reaction, the proper recourse available to the judge in this situation would be that set forth in Commission Rule 80, governing the standards of conduct for individuals practicing before the Commission, and providing for the institution of disciplinary proceedings in appropriate circumstances. 29 C.F.R.
$ 2700.80. The need to scrupulously follow the Commission's rules on disciplinary procedures previously has been stressed by the Commission. Secretary of Labor ex rel. Roy A. Jones v. James Oliver & Wayne Seal, FMSHRC Docket No. NORT 78-415, March 27, 1979; Canterbury Coal Co., 1 FMSHRC 335 (May 1979). Due to the limitations set forth in the Act as to the criteria to be applied in assessing penalties, as well as the need for faithful adherence to the Commission's Rules, we vacate that portion of the judge's decision assessing six additional penalties of $100 per violation due to the attitude of the operator and its counsel. Our decision today does not foreclose the institution of proceedings by the judge below under section 2700.80 if he is of the view that this is appropriate. Accordingly, we dismiss for lack of prosecution the operator's appeal challenging the judge's assessment of penalties totalling
$5,100 based on the statutory criteria specified in section 110(i). The judge's decision stands as the final order of the Commission in this regard. The portion of the judge's decision assessing a total of $600 in penalties for the "cavalier attitude" displayed by the operator and its counsel is vacated. A. E. Lawson, Commissioner
~807
Distribution
Robert J. Petrick, Esq.
Turner Brothers, Inc.
P.0. Box 447
Muskogee, Oklahoma 74401
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore
Federal Mine Safety & Health Review Commission 5203 Leesburg Pike, lOth Floor Falls Church, Virginia 22041