River Cement Company

Plain-English summary

River Cement Company moved to dismiss two civil-penalty petitions as untimely. Judge John J. Morris found that the Secretary filed both petitions 23 days after the 45-day deadline in Commission Rule 27(a), and that a change in processing policy and reliance on an internal date stamp did not establish adequate cause. The judge dismissed both cases even though River Cement had shown no prejudice from the delay.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.27(a)
• Outcome: Both civil-penalty cases were dismissed because the Secretary did not justify the late filings.
• Key point: Internal processing delays and a misread date stamp did not constitute adequate cause for 23-day late penalty petitions.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. RIVER CEMENT
DDATE:
19861020
TTEXT:

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       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 86-127-M
PETITIONER A.C. No. 23-00188-05520

      v.                            Docket No. CENT 86-128-M
                                    A.C. No. 23-00188-05521

RIVER CEMENT COMPANY,
RESPONDENT Selma Plant Quarry & Mill

                       ORDER OF DISMISSAL

Before: Judge Morris

 Respondent has moved to dismiss the above cases for the

reason that the Secretary's PETITION FOR ASSESSMENT OF CIVIL
PENALTY was not timely filed.

 In his memoranda filed in the case the Secretary does not

concede the facts but he states that his petition "may" have been
filed beyond the 45 day period as required by Commission Rule
27(a), 29 C.F.R. 2700.27(a). The Secretary also asserts that
the respondent has failed to show any prejudice. The Secretary
has not filed any affidavits nor has he denied certain relevant
facts that appear as a matter of record.

 These facts are that on June 27, 1986 respondent filed its

notice of contest in each of these cases. (Notice of contest form
in each file). The Secretary filed his petitions with the
Commission on September 3, 1986. (Time/date stamp on petition in
file).

In support of his position the Secretary states as follows:

Although his petition may have been beyond the 45 day
limitation recited at 29 C.F.R. 2700.27, the
Secretary asserts that this resulted from
miscalculation of time periods in the normal processing
of these cases in the office of the Secretary's
counsel. This miscalculation resulted from two factors.
First, a delay in processing was encountered at the
Civil Penalties Processing Unit (CPPU) of the Mine
Safety and Health Administration in Arlington, Virginia
due to a change in policy being implemented in that
office at the time the respondent's Notice of Contest
and Request for Hearing in these matters was received.
Due

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to this unusual delay in processing at the CPPU and the
resultant delayed arrival of the case file to the office of
the Secretary's counsel, the date stamp of July 11, 1986 on
the Request for Hearing Form was inadvertently picked up as
being the date the Request for Hearing was received in the
CPPU (it being in line with the time factor usually
involved in this type of case from the time of receipt of
the Request for Hearing at the CPPU until the receipt of the
file in the office of the Secretary's counsel). Based upon
the date stamp of July 11, 1986 the Secretary calculated a
due date of August 29, 1986, which is eighteen days beyond
the due date alleged by respondent in its motion.

While it appears that the Secretary's petition may have
been filed eighteen days beyond the 45 day period, it
is also apparent that respondent has demonstrated no
prejudice to itself as a result.

                          Discussion

 The applicable case law is contained in Salt Lake County

Road Department, 3 FMSHRC 1714 (1981), and Medicine Bow Coal
Company, 4 FMSHRC 882 (1982). In these cases the Commission ruled
that a two-tier test exists in a late filing situtation. The
initial test requires that the Secretary to show adequate cause
to support his late filing. In Salt Lake and Medicine Bow the
Secretary's excuse of insufficient clerical help was accepted as
minimally adequate. The second test is that dismissal could be
required, notwithstanding adequate cause, when an operator
demonstrates prejudice caused by the delayed filing.

 In view of the Commission's pronouncements it is necessary

to examine the record to determine whether the Secretary has
established adequate cause.

 As a threshold matter it appears that the appeal process

commenced with a notice of contest on June 27, 1986. Under
Commission Rule 27(a) 29 C.F.R. 2700.27(a) the Secretary was
obliged to file his petition within 45 days. The 45 day period
expired on August 11, 1986. The petitions were in fact filed on
September 3, 1986 which was 68 days after receipt of the notice
of contest and 23 days late.

 In justification of the late filing the Secretary basically

states it was due to a "change in policy" at his office at the
Civil Penalties Processing Unit and by a subsequent misreading of
a date stamp.

 The "change in policy" was not further explained and may

have some meaning for the Secretary but it fails to present the
judge with any facts to justify the late filing. In addition, I
do not see how a "change in policy" could affect a long standing
filing requirement.

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In addition, the Secretary also states that a date stamp of
July 11, 1986 was inadvertently relied on to calculate a date of
August 28, 1986.

 In Medicine Bow the Commission specifically rejected the

Secretary's reliance on such internal date stamps describing it
as "internal bureaucratic processing" 4 FMSHRC at 884, footnote
5.

 For the foregoing reasons, I conclude the Secretary has

failed to show adequate cause to justify the late filing of his
petitions.

Accordingly, I enter the following:

                            ORDER

1. CENT 86Ä127ÄM is dismissed.

2. CENT 86Ä128ÄM is dismissed.


                          John J. Morris
                          Administrative Law Judge