Secretary of Labor v. Randall H. Fleming, employed by Conshor Mining, LLC

Plain-English summary

MSHA sought a $5,000 personal penalty against Randall H. Fleming under section 110(c), alleging that he knowingly authorized, ordered, or carried out unsafe roof-support conditions while employed by Conshor Mining. The underlying order against Conshor had already been vacated after the company was dissolved in Chapter 7 bankruptcy, and that vacation became final. Judge Jerold Feldman held that an agent's section 110(c) liability requires a viable underlying violation by the mine operator. Because no predicate operator liability remained, he dismissed the personal-liability proceeding against Fleming.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.202
• Outcome: The section 110(c) personal-liability proceeding and proposed $5,000 penalty were dismissed.
• Key point: An agent cannot be held personally liable for conduct under section 110(c) after the underlying enforcement order against the operator has been finally vacated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

September 16, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

RANDALL H. FLEMING, employed by

CONSHOR MINING, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2009-189

A.C. No. 15-18861-164718A

Mine: No. 1

ORDER OF
DISMISSAL

Before:  Judge Feldman

This proceeding concerns the matter
of the personal liability of Randall H. Fleming under section 110(c) of the Federal
Mine Safety and Health Act of 1977, as amended (“Mine Act”),   30 U.S.C. §
820(c), for the violative condition cited in 104(d)(2) Order No. 7503263 issued
to Conshor Mining, LLC, (“Conshor”) on July 17, 2007, for an alleged violation
of the mandatory standard in 30 C.F.R. § 75.202.  Section 75.202 prohibits
miners from working or traveling under unsupported roof.  30 C.F.R. § 75.202. 
Order No. 7503263 was contested by Conshor in civil penalty Docket No. KENT
2008-481.[1] 
Un-adjudicated Order No. 7503263 was vacated on August 6, 2015, as a
consequence of a Chapter 7 bankruptcy proceeding that dissolved Conshor as a
corporate entity, effective December 31, 2012.  See Conshor Mining, LLC,
37 FMSHRC __, slip op., at 4-5 (Aug. 6, 2015).  The Secretary did not appeal
the vacation of Order No. 7503263 in Docket No. KENT 2008-481.  Thus, the
vacation of Order No. 7503263 has become final.

Remaining for disposition is the
Secretary’s personal liability action against Fleming brought pursuant to
section 110(c), alleging that Fleming, as an agent of Conshor, “knowingly
authorized, ordered, or carried out [the] violation of 30 C.F.R. § 75.202” that
was cited in  Order No. 7503263.  The Secretary has proposed a civil penalty of
$5,000.00 to be assessed against Fleming for the alleged violative condition
cited in Order No. 7503263.

Section 110(c) liability is
predicated upon prohibited conduct undertaken by an agent on behalf of a
principal.  This proceeding presents the issue of whether a personal liability
case against an agent (Fleming) can survive the dismissal of the underlying
citation issued against a principal (Conshor).  In Kenny Richardson, the
Commission was confronted with the question of

personal liability in a case where the mine operator’s liability
for the underlying citation      was not adjudicated because of the
operator’s failure to contest the alleged underlying violation.  The Commission
held that “[w]hether or not the operator is found
liable in a separate proceeding, the Secretary must still fully prove his case
in a [personal liability] proceeding against the agent.”  Kenny Richardson, 3 FMSHRC 8, 10
(Jan. 1981).  In Kenny Richardson, although the uncontested citation
issued to the mine operator remained un-adjudicated, the underlying citation remained
viable in that it was not formally dismissed by the Commission.  In the instant
case, unlike Kenny Richardson, the underlying citation against the
operator is no longer viable because the Commission dismissal has become final.

Here, agency liability is based on
a derivative liability—from the mine operator to the agent for violative
conduct committed by the agent on behalf of the mine operator during the
regular course of his employment.  If the principle has been determined to not
be liable for the agent’s conduct by virtue of the Commission’s dismissal
of the underlying violation, so too, the agent cannot be found to be liable for
the same conduct.  See Sunny Ridge Mining Co., 19 FMSHRC 254, 270 (Feb.
1997) (vacating and remanding a 110(c) liability decision for further
determination based on the Commission’s vacation and remand of a judge’s
finding of liability against the operator for the underlying violation).  Liability
against the principal having been dismissed in Docket No. KENT 2008-481, there
is no predicate liability of the mine operator that can serve as a basis for
the personal liability of the agent.  Consequently, the 110(c) proceeding
seeking to impose personal liability on Fleming for the violation cited in
Order. No. 7503263, which has previously been vacated, must be dismissed.

ORDER

In view of the above, IT IS ORDERED that the
captioned matter seeking to impose 110(c) personal liability against Randall H.
Fleming IS DISMISSED.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution: (Regular and Certified Mail)

Thomas
A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219-5321

Randall H. Fleming, P.O. Box J, Cumberland, KY 40823

/acp

[1] KENT 2008-481 was stayed pending resolution of the
novel question of the evidentiary criteria necessary for demonstrating a
repeated flagrant violation under section 110(b)(2) of the Mine Act, as amended
by the Mine Improvement and New Emergency Response Act of 2006,       30 U.S.C.
§ 820(b)(2).  See Conshor Mining, LLC, 37 FMSHRC __, slip op., at 2
(Aug. 6, 2015).