River Cement Company

Plain-English summary

River Cement Company moved to dismiss the Secretary's civil-penalty petition as untimely. Judge John J. Morris found that the Secretary filed the petition seven days after the 45-day deadline in Commission Rule 27(a), and that the Secretary's explanations of inadvertence and multiple responses did not establish adequate cause. The judge dismissed the case even though River Cement had shown no prejudice from the delay.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.27(a) and 2700.8(b)
• Outcome: The civil-penalty case was dismissed because the Secretary did not justify the late filing.
• Key point: A late penalty petition requires adequate cause, and inadvertence alone was not sufficient here.

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 PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 86-91-M
PETITIONER A.C. No. 23-00188-05518

      v.                               Selma Plant Quarry & Mill

RIVER CEMENT COMPANY,
RESPONDENT

                         ORDER OF DISMISSAL

Before: Judge Morris

 Respondent has moved to dismiss the above case 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 the appeal process was initiated on

April 24, 1986 with a notice of contest (notice of contest form).
The Secretary filed his petition on June 16, 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 this type of case
in the office of the Secretary's counsel. This
miscalculation occurred due in part to inadvertence by
the Secretary's representative and in part due to the
fact that the respondent sent at least three separate
responses to the notice of proposed penalties. Based on
the date stamp of May 5, 1986, on the last of the three
letters from respondent, the Secretary's calculated a
due date of June 19, 1986. The Petition was actually
filed on June 11, 1986, a mere two days beyond the due
date alleged by respondent in his motion.

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

                          Discussion

 The applicable case law is contained in Salt Lake County

Road Department (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 situation. The initial test requires 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 dated April 24, 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 June 9, 1986. The Secretary filed his
petition on June 16, 1986 which was 53 days after receiving the
notice of contest and 7 days late.

 In justification of the late filing the Secretary basically

states it was due to "inadvertence by the Secretary's
representative" and due to the fact that "respondent sent three
separate responses to the notice of the contest".

 Inadvertence does not constitute justification for the late

filing of a complaint.

 The letters relied on by the Secretary all post-date the

notice of contest of April 24. The 45 day period began to run
after receipt of the April 24 notice.

 In Medicine Bow an issue was presented as to whether the

filing time for penalty proposals should be augmented by the 5

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days that Commission Rule 8(b), 29 C.F.R. 2700.8(b) allows for
filing documents in response to those served by mail. The
Commission ruled "[t]he 45Äday period in Rule 27 is a sufficient
amount of time to allow for the processing of mail" . . .
further . . . Rule 8(b) does not apply to the Secretary's
filing of penalty proposals" 4 FMSHRC at 884.

 For the foregoing reasons I conclude that the Secretary

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

Accordingly, I enter the following:

                             ORDER

CENT 86Ä91ÄM is dismissed.


                             John J. Morris
                             Administrative Law Judge