Ezel / Agency Decisions / kent-94-1077-r-commission
FMSHRC Commission decision Docket KENT 94-1077-R, KENT 94-1078-R, KENT 94-1079-R, KENT 94-1080-R, KENT 94-1081-R, KENT 94-1082-R, KENT 94-1083-R, KENT 94-1084-R, KENT 94-1085-R, KENT 94-1086-R, KENT 94-1087-R, KENT 94-1088-R, KENT 94-1089-R, KENT 94-1090-R, KENT 94-1091-R, KENT 94-1092-R, KENT 94-1093-R, KENT 94-1094-R, KENT 94-1095-R, KENT 94-1096-R, KENT 94-1097-R, KENT 94-1098-R, KENT 94-1099-R, KENT 94-1100-R, KENT 94-1101-R, KENT 94-1102-R, KENT 94-1103-R, KENT 94-1104-R, KENT 94-1105-R, KENT 94-1106-R, KENT 94-1107-R, KENT 94-1108-R, KENT 94-1109-R, KENT 94-1110-R, KENT 94-1111-R, KENT 94-1112-R, KENT 94-1113-R, KENT 94-1114-R, KENT 94-1115-R, KENT 94-1116-R, KENT 94-1117-R, KENT 94-1118-R, KENT 94-1119-R, KENT 94-1120-R, KENT 94-1121-R, KENT 94-1122-R, KENT 94-1123-R, KENT 94-1124-R, KENT 94-1125-R, KENT 94-1126-R, KENT 94-1127-R, KENT 94-1128-R, KENT 94-1129-R, KENT 94-1130-R, KENT 94-1131-R, KENT 94-1132-R, KENT 94-1133-R, KENT 94-1134-R, KENT 94-1135-R, KENT 94-1136-R, KENT 94-1137-R, KENT 94-1138-R, KENT 94-1139-R, KENT 94-1140-R, KENT 94-1141-R, KENT 94-1142-R, KENT 94-1143-R, KENT 94-1144-R, KENT 94-1145-R, KENT 94-1146-R, KENT 94-1147-R, KENT 94-1148-R, KENT 94-1149-R, KENT 94-1150-R, KENT 94-1151-R, KENT 94-1152-R, KENT 94-1153-R, KENT 94-1154-R, KENT 94-1155-R, KENT 94-1156-R, KENT 94-1157-R, KENT 94-1158-R, KENT 94-1159-R, KENT 94-1160-R, KENT 94-1161-R, KENT 94-1162-R, KENT 94-1163-R, KENT 94-1164-R, KENT 94-1165-R, KENT 94-1166-R, KENT 94-1167-R, KENT 94-1168-R, KENT 94-1169-R, KENT 94-1170-R, KENT 94-1171-R, KENT 94-1172-R, KENT 94-1173-R, KENT 94-1174-R, KENT 94-1175-R, KENT 94-1176-R, KENT 94-1177-R, KENT 94-1178-R, KENT 94-1179-R, KENT 94-1180-R, KENT 94-1181-R, KENT 94-1182-R, KENT 94-1183-R, KENT 94-1184-R, KENT 94-1185-R, KENT 94-1186-R, KENT 94-1187-R, KENT 94-1188-R, KENT 94-1189-R, KENT 94-1190-R Decided August 7, 1996 Remanded

Day Branch Coal Company, Inc. and Bobby Joe Hensley

Day Branch Coal Company, Inc. and Bobby Joe Hensley (FMSHRC KENT 94-1077-R through KENT 94-1190-R): Dismissal vacated and remanded

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Currency note: this decision dates from 1996
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Federal Mine Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance under 30 U.S.C. § 816; check subsequent history before relying on it. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Day Branch Coal Company and Bobby Joe Hensley asked the Commission to review dismissal of a large group of contest proceedings. The Commission found that the ALJ dismissed the cases before the operators’ response period had expired under the Commission’s service rules. It vacated the dismissal order and remanded the proceedings for further appropriate action.

Decision snapshot

  • Governing rules: 29 C.F.R. §§ 2700.8 and 2700.10(c)
  • Outcome: The dismissal order was vacated, and the contest proceedings were remanded.
  • Key point: Commission parties must receive the full response period provided by the procedural rules before a motion is resolved.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                      August 7, 1996

DAY BRANCH COAL COMPANY, INC. :
and BOBBY JOE HENSLEY :
: Docket Nos. KENT 94-1077-R
v. : through KENT 94-1190-R
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :

Before: Jordan, Chairman; Holen, Marks and Riley, Commissioners

                                          ORDER

BY THE COMMISSION:

    These contest proceedings arise under the Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 801 et seq. (1994) (“Mine Act”). On August 30, 1994, the Secretary of Labor filed an
unopposed motion to hold the contest cases in abeyance pending the issuance of proposed civil
penalties. Administrative Law Judge Roy J. Maurer granted the motion on October 7, 1994. On
December 5, 1994, the Secretary filed an unopposed request for stay of proceedings. This was
based on the request of the United States Attorney for the Eastern District of Kentucky, who
asked that the civil litigation be held in abeyance during the pendency of potential criminal
proceedings involving individuals at the mine.

     On June 19, 1996, the Secretary filed a motion to dismiss the notices of contest, asserting

that the operator did not file notices of contest of the proposed penalties. The Secretary
contended that proposals for assessment of civil penalties regarding the above-captioned citations
were made on January 17, and September 17, 1995. On June 27, 1996, the judge issued an order
lifting the stay and dismissing the cases.

    On July 2, 1996, Day Branch Coal Company and Bobby Hensley (collectively

“operators”) filed with the administrative law judge a Motion to Reconsider and Vacate Order
Entered June 27, 1996 (“Mot. to Reconsider”). The operators subsequently filed a petition for
discretionary review on August 2, 1996. Counsel for operators contends that he did not contest
penalties filed in these proceedings because he never received notice that penalties had been
assessed. PDR at 1-2; Mot. to Reconsider at 1. Indeed, as recently as February 5, 1996, an

Page 2

attorney in the Secretary’s Office of the Solicitor represented to the judge that the Secretary had
not yet assessed civil money penalties. Letter from Malecki to Judge Maurer of 2/5/96. Counsel
for operators also states that, pursuant to 29 C.F.R. §§ 2700.8 and 2700.10, the time to respond
to the Secretary’s June 19 motion had not expired when the judge issued his order on June 27,
1996. Mot . to Reconsider at 2. On July 16, 1996, the Secretary filed his opposition to the
motion to reconsider.

     The Commission’s procedural rules, codified at Part 2700 of 29 C.F.R., state that an

opposition to a motion may be filed within ten days after service upon the party. 29 C.F.R.
§ 2700.10(c). Furthermore, the rules permit an additional five days for filing a response when the
initial document was served by mail. 29 C.F.R. § 2700.8. The Secretary served his motion by
mail on June 19, 1996. S. Certificate of Service to Motion to Dismiss. By issuing his order on
June 27, the judge did not allow operators the time permitted to respond under the Commission’s
rules.

   Accordingly, we grant the operators’petition for discretionary review, vacate the

dismissal order, and remand this matter to the judge for further appropriate proceedings.
Operators’motion for reconsideration, which requests the same relief as its petition, is moot.

                                          ______________________________
                                          Mary Lu Jordan, Chairman



                                          _______________________________
                                          Arlene Holen, Commissioner




                                          _______________________________
                                          Marc Lincoln Marks, Commissioner



                                          _______________________________
                                          James C. Riley, Commissioner

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