James Lee Hancock, employed by Pittsburgh & Midway Coal Company

Plain-English summary

James Lee Hancock, an employee of Pittsburgh and Midway Coal Company at the Cimmarron Mine, asked the judge to dismiss a personal civil-penalty case because the Secretary had taken too long to file the penalty petition. Judge Paul Merlin accepted the Secretary’s explanation for the filing delays, including the need to review related investigations and records, and found good cause for the extensions. The judge also found that Hancock had not shown actual prejudice from the elapsed time. The motion to dismiss was denied, and the penalty petition was accepted for filing.

Decision snapshot

• Governing provisions: 30 U.S.C. § 810(c), § 814(d), and § 820(a); 29 C.F.R. § 2700.9, § 2700.26, § 2700.28, and § 2700.72
• Outcome: The motion to dismiss was denied and the penalty petition filing was accepted.
• Key point: Delay in a Mine Act personal-liability case did not require dismissal where the Secretary showed good cause and the respondent did not demonstrate actual prejudice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., SUITE 600
WASHINGTON, D.C. 20006

                      September 20, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-185
Petitioner : A. C. No. 29-00224-03667 A
:
v. : Cimmarron Mine
:
JAMES LEE HANCOCK, EMPLOYED :
BY PITTSBURGH & MIDWAY COAL :
COMPANY, :
Respondent :

              ORDER DENYING MOTION TO DISMISS
                   ORDER ACCEPTING FILING

Before: Judge Merlin

 This case is a petition for the assessment of civil penal-

ties filed by the Secretary of Labor against respondent, James
Lee Hancock, under section 110(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. ' 810(c), hereinafter referred to
as the AAct@. Respondent seeks to have the petition dismissed on
the ground that the Secretary has failed to act in a timely
manner.

 The case involves one citation and three orders issued to

respondent=s employer, Pittsburgh and Midway Coal Company, under
section 104(d) of the Act, 30 U.S.C. ' 814(d), for alleged
violations of the Act and its mandatory standards. The citation
and first order were issued on July 15, 1993, and the subsequent
two orders were issued on June 16, 1994.

 Petitions for the assessment of civil penalties for the same

conditions also were filed by the Secretary against respondent=s
employer, Pittsburgh and Midway Mining Company, under section
110(a) of the Act, 30 U.S.C. ' 820(a). The first two items were
the subject of an ALJ decision after hearing which affirmed the
citation and order. Pittsburgh and Midway Mining Company, 16
FMSHRC 2260 (Nov. 1994). The latter orders are presently on stay
before an Administrative Law Judge pending assignment of this
case (Docket No. CENT 95-13).

 On April 3, 1995, a civil penalty assessment was issued by

the Secretary against respondent under section 110(c), supra.
Thereafter, on April 24, 1995, respondent timely requested a

Page 2

hearing. 29 C.F.R. ' 2700.26. The Secretary is allowed 45 days
after the hearing request to file his penalty petition. 29
C.F.R. ' 2700.28. The time for filing or serving any document
may be extended for good cause shown and the request for exten-
sion must be filed before the expiration of the time allowed for
filing. 29 C.F.R. ' 2700.9. The Solicitor filed a request for
an extension of time within which to file the penalty petition on
June 12, 1995, which was the 45th day. The request was served
upon respondent, but not upon his counsel. An order dated June
19, 1995, granted the extension. On July 11, 1995, the Solicitor
filed a second motion for a further extension of time. This
motion was served upon respondent=s counsel who
on July 21, 1995, filed a memorandum in opposition to the both
the first and second requests for extensions. An order dated
August 7, 1995, directed the Solicitor to respond to the matters
raised in respondent=s memorandum.1

  Respondent first seeks dismissal on the ground that the

requests for extensions should not be granted. The Solicitor
explains the basis for his requests as follows: Two petitions
for the assessment of civil penalties were filed against respon-
dent=s employer under section 110(a) regarding the same condi-
tions for which respondent now has been cited. The Solicitor
consulted with his colleagues who had been assigned the other
cases. As already noted, one of those dockets had been heard and
decided and the Solicitor acquired and read the hearing tran-
script which was 449 pages. He represents that he did not want
to file the 110(c) petition unless and until he could reliably
determine respondent was the responsible agent and that bringing
suit was appropriate as in accordance with the statute's substan-
tive requirements.

 I accept the Solicitor's explanation. It was proper for him

to review the entire record compiled before he was assigned the
case. Indeed, it would have been irresponsible for him not to
have done so. I have previously permitted the late filing of
penalty petitions upon a showing of good cause where there has
been no prejudice shown. And I have noted the large number of
mine safety cases. Here the nature of the case and the overall
caseload constitute good cause. Power Operating Company Incorpo-
rated, 15 FMSHRC 931, (May 1993), Wharf Resources USA Incorpo-
rated, 14 FMSHRC 1964 (November 1992); Salt Lake County Road
Department, 3 FMSHRC 1714 (July 1981). See also the Commission=s
decision in Rhone-Poulenc, 15 FMSHRC 2089 (October 1993) aff=d,
57 F.3rd 982 (10th Cir. 1995). In addition, although the opera-
tor has alleged prejudice, it has not demonstrated any injury

 1
  The penalty petition was filed on August 7, 1995, and the

answer was filed on August 21, 1995.

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resulting from these extensions. In light of the foregoing, I
grant the extensions sought by the Solicitor for the filing of
the penalty petition.2
Respondent also seeks dismissal of this case because 17
months elapsed between the first two citations dated July 15,
1993, and the notice of proposed assessment dated December 22,
1994. Respondent states that the operator is in the midst of
a reduction in force which significantly increases the risk
that critical witnesses will no longer be available and that
relevant documents will not be located. He also advises that
his employment was terminated on July 14, 1995. Based upon these
assertions, respondent alleges prejudice.

 In reply, the Solicitor sets forth what transpired

during the time it took MSHA to complete its investigation. On
January 18, 1994, a special investigator was assigned to conduct
a 110(c) investigation. Because of other 110(c) investigations
to which the investigator was assigned, he did not commence work
on this case until May 9, 1994. In the course of his activities
the investigator determined that two additional unwarrantable
failure violations existed and therefore, on June 16, 1994,
issued two additional orders. The subsequent orders were
added to the investigation on June 30, 1994. Two weeks later, on
July 13, 1994, the special investigation report and supporting
materials which consisted of more than 400 pages and contained
interviews and signed statements, were sent to MSHA=s Office of
Technical Compliance in Arlington, Virginia. That office com-
pleted its review in two weeks, finding agent liability, and
forwarded the files to the MSHA Division of the Solicitor=s
office, also located in Arlington. On December 12, 1994, the
Solicitor in Arlington completed review and approved a finding of
liability under section 110(c). The file was returned to Denver
and on December 22, 1994, the District Manager mailed the notice
of proposed assessment to respondent.

 Without doubt, the seventeen months between the first

 2
  Since the first request for extension was not served upon

respondent=s counsel, both requests are before me and I have
considered both of them. Accordingly, respondent has not been
injured by the lack of service. I have previously declined to
dismiss a penalty petition for lack of service. Power Operating,
supra.

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Page 4

citations and the proposed assessment notice constitute a consid-
erable period of time. This is particularly so when this period
is viewed together with the extensions of time for filing the
penalty petitions. From the information furnished by the Solici-
tor it appears that much of the elapsed time was taken up with
delays in handling the case rather by actual work. The special
investigation took six weeks. But six months passed before an
investigator was assigned to the case and an additional three
months went by because the special investigator was working on
other cases. Also the case was with the Solicitor in Arlington
for five months.

 Nevertheless, it must be borne in mind that both the inves-

tigation and the various levels of internal review were necessary
for a proper evaluation of agent liability and a knowing viola-
tion. The time used to evaluate the case could reasonably be
viewed as affording some assurance that resources of both the
individual and the government would not be wasted by the bringing
of an unworthy case.

 Moreover, this case does not exist in a vacuum. I take note

that data in the Commission=s docket office shows the following:
In 1990 there were 147 completed investigations under section
110(c), 49 of which were contested for a contest rate of 33%. In
1991 there were 256 such investigations, 126 of which were
contested for a contest rate of 49%. In 1992 there were 308
investigations, 142 of which were contested for a contest rate of
46%. In 1993 there were 293 investigations, of which 128 were
contested for a contest rate of 44%. In 1994 there were 251
investigations, 177 of which were contested for a contest rate of
70%. The number of investigations is rather high and the rate at
which they are contested has risen sharply.

 Section 110(a) provides that a citation be issued to an

operator within a reasonable time. The legislative history
speaks in terms of reasonable promptness for the issuance of such
citations. S. Rep. No. 181, 95th Cong., 1st Sess. 30 (1977),
reprinted in, Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 618 (1978).
No such requirement specifically applies under 110(c), but
elemental fairness would seem to require application of this
condition to 110(c) cases. Relevant to the meaning of this
requirement is the legislative history which specifically
recognizes that there may be instances where a citation will be
delayed because of the complexity of the issued raised, a
protracted accident investigation of other legitimate reason. S.
Rep. No. 181, supra at 30. Legislative History, supra at 618.

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Page 5

 In view of the considerations set forth above and after

carefully weighing all the factors, I conclude that good cause
existed for the delays. The Solicitor is, however, cautioned
that the delays in processing which occurred here are troubling.

 In addition and most importantly, respondent has not

demonstrated that he has been prejudiced by the delays. He
asserts that he runs the risk of witness and document
unavailability. But he does not show that any such
unavailability has occurred. In this case I will not infer
prejudice from the passage of time alone.

 Respondent cites the ALJ decision in Curtis Crick, 15 FMSHRC

735 (April 1993). In that case the Secretary did not timely
request an extension within which to file the penalty petition.
It is therefore, distinguishable from this matter. To the extent
that Curtis Crick is contrary to anything herein, it is not
binding upon me and I decline to follow it. 29 C.F.R. ' 2700.72.
More to the point is the recent ALJ Order Denying Motions To
Dismiss dated August 8, 1995, in Cedar Creek Quarries et al, 17
FMSHRC____, (Docket No. WEST 94-637 et al). In Cedar Creek the
Administrative Law Judge refused to dismiss a 110(c) case where
the investigation took fifteen months.

 In light of the foregoing, I conclude that the time elapsed

between the issuance of the first citations and the Notice of
Proposed Assessment does not constitute a basis for dismissal in
this case. In addition, I conclude that dismissal is not war-
ranted when the 60 day extensions granted the Solicitor is added.

  In light of the foregoing it is ORDERED that the motion to

dismiss be DENIED.

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Page 6

 It is further ORDERED that the filing of the penalty

petition be ACCEPTED.

  The case will be assigned by separate order.




                             Paul Merlin
                             Chief Administrative Law Judge

Distribution: (Certified Mail)

Robert A. Goldberg, Esq., Office of the Solicitor, U. S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202

Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street,
Suite 2710, Denver, CO 80264

Mr. James Lee Hancock, HCR 63, Box 201, Raton, New Mexico 87741

Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Room
414, Arlington, VA 22203

/gl

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