Secretary of Labor v. Clean Energy Mining Company (ALJ decision, April 20, 2007)

Plain-English summary

Clean Energy Mining Company asked the judge to dismiss a civil penalty case because the Secretary filed the penalty petition after the 45-day deadline in Commission Rule 28(a). The petition was due December 15, 2006, but was filed January 12, 2007 after a processing error caused the Secretary to use the wrong contest-receipt date. Both parties acknowledged that the deadline was not jurisdictional unless the operator showed prejudice. Judge Jerold Feldman denied the motion because processing deadlines generally prompt agency action rather than restrict the Secretary’s authority, and no prejudice was shown.

Decision snapshot

• Cited provision: 29 C.F.R. § 2700.28(a)
• Outcome: Clean Energy Mining Company’s motion to dismiss the late-filed penalty petition was denied.
• Key point: A late penalty petition is not dismissed solely for missing the 45-day filing guideline when the operator shows no prejudice.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

April 20, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

CLEAN ENERGY MINING COMPANY,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. KENT 2007-74

A.C. 15-10753-100293

Mine #1

ORDER DENYING RESPONDENT’S

MOTION TO DISMISS

Before: Judge Feldman

Commission Rule 28(a), 29 C.F.R. § 2700.28(a), specifies that the Secretary shall file a petition for assessment of civil penalty with this Commission within 45 days of receipt of a mine operator’s timely contest of the Secretary’s proposed penalty assessment. The Respondent filed its notice of contest with the Secretary’s Mine Safety and Health Administration (MSHA) on October 31, 2006. Thus, the date for the Secretary’s timely filing of her penalty assessment petition with the Commission was December 15, 2006. However, the Secretary filed her petition on January 12, 2007.

Consequently, the Respondent has filed a motion to dismiss the subject petition for assessment of civil penalty as untimely. The Secretary opposes the Respondent’s motion asserting that the delay was caused by the Secretary’s mistaken belief, apparently due to a processing error, that the Respondent’s contest was received by MSHA on November 28, 2006.

In their filings, both parties acknowledge that, absent a showing of prejudice, the 45-day filing period for the Secretary’s petition for assessment of civil penalty is not jurisdictional. See Lone Mountain Processing Incorporated, 17 FMSHRC 839 (May 1995) (ALJ) (citations omitted). Moreover, processing guidelines generally are intended to “spur the Secretary to action,” rather than to confer rights on litigants that limit the scope of the Secretary’s authority. Sec’y of Labor v. Twentymile Coal Company, 411 F.3d 256, 261 (D.C. Cir. 2005). Accordingly, the Respondent’s motion to dismiss IS DENIED.

Jerold Feldman

Administrative Law Judge

Distribution:

Christian P. Barber, Esq., Office Of The Solicitor, U.S. Department Of Labor, 618 Church St., Suite 230, Nashville, TN 37219-2440

Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, Huntington Square, 900 Lee Street, Suite 600, P.O. Box 11887, Charleston, WV 25339

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