Secretary of Labor v. Armstrong Coal Co., Inc.

Plain-English summary

This official release contains the same amended dismissal text as the separately posted kent-2013-185-alj release, with layout differences only. The Secretary failed to comply with an order requiring the parties to confer and submit joint stipulations, then did not explain the failure after an order to show cause. Judge William S. Steele dismissed the 24 citations covered by Armstrong Coal's motion. The remaining citations in the docket were not disposed of by this order.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.1(b)
• Outcome: Twenty-four of the docket's 49 citations were dismissed for failure to comply with the court's order to confer.
• Key point: This separate agency posting preserves the same amended dismissal in a different official document layout.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-920-8689

March 25, 2013

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

ARMSTRONG COAL CO, INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. KENT 2013-185

A.C. No. 15-19358-303177

Mine: Parkway Mine

AMENDED ORDER
DISMISSING 24 CITATIONS FOR FAILURE OF THE SECRETARY TO COMPLY WITH AN ORDER OF
THE COURT[1]

Before:  Judge Steele

On the 14th
day of January, 2014, Respondent filed a Motion for an Order to Show Cause,
stating that the Secretary had been unresponsive to an Order of the Court. The
Court had ordered the parties to confer on stipulations in a pending Motion for
Partial Summary Decision, which concerned jurisdictional matters in 24 of 49
citations issued in Docket No. KENT 2013-185.
[2]

As noted in
Respondent’s Motion for an Order to Show Cause, a telephone hearing was held on
July 23, 2013, in which the Court informed the parties that more factual
information was required in order to make a ruling on the pending Motion for
Partial Summary Decision. After discussion of the issues, the parties agreed
that perhaps certain joint stipulations could be submitted that would assist
the Court in the determination of essential facts. Based on this agreement, the
Court ordered the parties to confer and submit joint stipulations within 45
days, or by September 6, 2013.

The record does not
indicate that the Secretary made any attempt to confer with the Respondent
within the timeframe ordered. The Order was issued in the summer. Summer became
autumn, and autumn turned into winter. The Secretary remained unresponsive.

Finally,
Respondent filed a Motion for an Order to Show Cause on January 14, 2014. In
his response, the Secretary stated, incorrectly, that Respondent’s Motion was
predicated on the Secretary’s refusal to agree to stipulations proffered by
Respondent, and admitted that there was a delay in notifying the Court
regarding “the acceptance, or not, of these proposed stipulations…” The
Secretary stated in his response that only two of the 10 proposed stipulations
of Respondent were acceptable and again acknowledged the delay, stating that it
“takes responsibility for the delay.”

On March 11,
2014, the Court issued an Order to Show Cause, directing the Secretary to show
good cause within 11 days for the reason there was a failure to comply with the
45-day deadline. The Secretary’s only response to this Order was a
retransmission of the response to Respondent’s Motion for an Order to Show
Cause. There has yet to be an explanation to the Court as to why there has been
no compliance.

In a prehearing
Order, dated February 13, 2013, the parties were obligated to communicate with
each other in good faith regarding substantive issues. The Order stated that
failure to do so was grounds for dismissal of the offending party’s case. Moreover,
29 C.F.R. § 2700.1(b) provides that a judge may be guided by the Federal Rules
of Civil Procedure (FRCP) on procedural matters not regulated by the
Commission’s rules. Rule 41(b) of the FRCP provides for the involuntary
dismissal of the action, or any claim, where the plaintiff (here the Secretary)
has failed to comply with a court order.

It is therefore ORDERED
that the 24 citations which are the subject of Respondent’s Motion for Order to
Show Cause be dismissed for failure to comply with the Court’s Order to Confer
regarding stipulations.

/s/
William S. Steele  

William
S. Steele

Administrative
Law Judge

Distribution:

Thomas A. Grooms, Office of the Solicitor, U.S. Dept of Labor, 618 Church St., Suite 230, Nashville, TN 37219

Mason L. Miller, Miller Wells PLLC, 300 E. Main St., Suite
360, Lexington, KY 40507

Adam K. Spease, Miller Wells PLLC, 710 W. Main St., 4th
Floor, Louisville, KY 40202

Daniel Z. Zaluski, Armstrong Coal Co., Inc., 407 Brown Rd., Madisonville, KY 42431

[1] This Order has been
amended to list the 24 of 49 citations that were referenced in the March 24,
2014 order.

[2] These citations are
8509488, 8509500, 8509756, 8509489, 8509759, 8509757, 8509751, 8509490,
8509752, 8509491, 8509760, 8509758, 8509753, 8509492, 8509493, 8509754,
8509494, 8509495, 8509496, 8509497, 8509761, 8509498, 8509755, and 8509499.