Black Panther Mining, LLC (ALJ decision, June 30, 2009)

Plain-English summary

The Secretary proposed $212 for two alleged non-S&S violations of Part 77 at Black Panther Mining's Oaktown Fuels Mine No. 1. Black Panther sought dismissal because the Secretary filed the penalty petition nearly seven months after the 45-day period in Commission Rule 28. Chief Judge Robert J. Lesnick explained that the filing period is not jurisdictional and that the Commission's unusually heavy caseload made strict adherence unwarranted. He also found no claim or showing that the delay prejudiced Black Panther. The motion to dismiss was denied, allowing the penalty proceeding to continue.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.28 and 30 U.S.C. § 815(a)
• Outcome: Black Panther's motion to dismiss the two alleged violations was denied.
• Key point: A seven-month filing delay did not require dismissal when the operator showed no prejudice and the deadline was not jurisdictional.

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

June 30, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

BLACK PANTHER MINING, LLC,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. LAKE 2008-391
A.C. No. 12-02394-145030

Mine: Oaktown Fuels Mine No. 1

ORDER DENYING RESPONDENT’S MOTION TO DISMISS

This civil penalty proceeding concerns two alleged violations Part 77 of the Secretary’s regulations. The cited violation was designated as non-significant and substantial in nature to reflect that it was unlikely that the violation will result in an accident causing serious injury. See, e.g., Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). The Secretary has proposed a total civil penalty of $212.00 in these matters.

Black Panther Mining, L.L.C. (“Black Panther”) has filed a Motion to Dismiss this case based on its assertion, in essence, that the Secretary failed to file the underlying Petition for Assessment of Civil Penalty within a reasonable time period as contemplated by section 105(a) of the Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a). The Secretary opposes Black Panther’s motion.

Section 105(a) provides:

If, after an inspection or investigation, the Secretary issues a citation or order under section 104, [she] shall, within a reasonable time after the termination of such inspection or investigation, notify the operator . . . of the civil penalty proposed . . . .

(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.

Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her petition for assessment of civil penalty within 45 days of receipt of a mine operator’s contest of a proposed assessment. The Secretary filed the subject petition on January 9, 2009, nearly seven months after the end of the 45 day filing period provided in Rule 28. Consequently,

Black Panther contends the citations in issue must be dismissed because the Secretary failed to act reasonably when she filed her petitions for civil penalty considerably later than the 45 days specified in Rule 28.

It is well settled that the Secretary’s late filing of a civil penalty petition is not jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted that statutory 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. Secretary of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005). The 45 day filing guideline in Rule 28 was deemed reasonable at a time when the Commission’s caseload averaged approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880 contest and civil penalty cases, the vast majority of which involve petitions that have been filed by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this unprecedented workload presently is not warranted.

Significantly, it has neither been contended, nor shown, that the seven month delay by

the Secretary has, in any way, prejudiced Black Panther. On balance, in the absence of a showing of prejudice, the Secretary’s delay does not provide an adequate basis for imposing the harsh sanction of dismissal. Accordingly, IT IS ORDERED that Black Panther’s Motion to Dismiss IS DENIED.

Robert J. Lesnick

Chief Administrative Law Judge

Distribution: (Certified Mail)

Edward B. Ritchie, U.S. Department of Labor, Mine Safety and Health Administration, 2300 Willow Street, Suite 200, Vincennes, IN 47591

G. Daniel Kelley, Jr., Esq., Ice Miller, LLP, One American Square, Suite 3100, Indianapolis, IN 46282-0200

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