Christian Miller and Willie Rowe, employed by South Carolina Minerals, Inc.

Plain-English summary

The Secretary sought individual penalties against South Carolina Minerals agents Willie Rowe and Christian Miller under section 110(c). They argued that the petitions did not identify facts showing knowing conduct and that the cited orders had not been attached, so the claims should be dismissed with prejudice. Judge Thomas P. McCarthy held that the petitions, special-assessment narratives, and orders together met the minimum pleading standard by describing the alleged conduct, gravity, negligence, and attributed knowledge. He agreed that the Secretary likely failed to include the orders with the original petitions. The Secretary later supplied the missing orders and narrative forms well before the hearing, however, and there was no showing of bad faith, delay, or prejudice. Because pleadings may be amended liberally and dismissal without reaching the merits is harsh, the Judge denied both motions.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(c) and 29 C.F.R. § 2700.28
• Outcome: Both motions for judgment on the pleadings were denied, allowing the individual civil-penalty cases to continue.
• Key point: A missing attachment does not require dismissal when the Secretary promptly cures the pleading defect and the respondents suffer no prejudice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 29, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

CHRISTIAN MILLER and WILLIE

ROWE, employed by, SOUTH

CAROLINA MINERALS, INC.,

Respondent

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2012-216-M

A.C. No. 38-00130-276271A

Docket No. SE 2012-215-M

A.C. No. 38-00130-276240A

Mine: Gaston Mine

ORDER DENYING MOTIONS FOR

JUDGMENT ON THE PLEADINGS

Before:            Judge McCarthy

This case is before me upon two petitions for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). After initiating
an investigation into alleged section 110(c) violations, the Secretary proposed civil penalties
against Willie Rowe as a result of the violations alleged in Order Nos. 611840, 6118442, and
6118444 and a civil penalty against Christian Miller as a result of the violation alleged in Order
No. 6118444. The Respondents have submitted identical Motions for Judgment on the Pleadings
alleging that the Secretary’s petitions were insufficient to state a claim for relief under
Commission Procedural Rule 28 and Federal Rules of Civil Procedure Rule 8(a)(2).
Respondents contend that the petitions do not identify any facts supporting the rationale for
imposing the civil penalties or tending to show that South Carolina Minerals’ alleged agents
knowingly authorized, ordered, or carried out any violations. Respondents move to dismiss the
above-captioned claims with prejudice on the basis of the insufficiency of the pleadings.

According to Commission Rule 28, a penalty petition must contain a list of the alleged
violations and a short and plain statement of supporting reasons based on the criteria for penalty
assessment set forth in section 110(i) of the Act. In addition, a copy of the citations or orders at
issue must be attached to the penalty petition. In most cases, the citation, assessment sheet, and
the boilerplate petition together contain enough information to satisfy the minimum pleading
requirements under the Commission’s rules.

See Clapp v. Cordero Mining, 2011 WL 7268153,
53 (2011) (ALJ McCarthy); Asarco, Inc., 23 FMSHRC 779 (2011) (ALJ Manning). 

Between the citations, the Special Assessment Narrative Form, and the petition itself, the
Secretary has met the minimal pleading requirements. The Special Assessment Narrative Form
sets forth information regarding how the Secretary assessed each penalty factor and how each
factor affected the proposed penalty assessment. The citations or orders explain the conditions
and practices that lead to each citation and the conclusions the inspector made as to gravity and
negligence. They also attribute the alleged knowing conduct to the named agent of the
Respondent operator.

In these cases, however, the Respondents claim that they have not received copies of the
citations associated with the section 110(c) allegations. The Secretary states that the orders were
physically served on Rowe and that both Respondents were given copies of the citations at the
beginning of the section 110(c) investigation. The Secretary also states that the citations were
attached to the petitions for civil penalty as required by Rule 28. In reviewing the record, it
appears that the Secretary did not send the citations with the petitions filed with the Commission,
and thus it is likely that the Secretary also failed to include the orders with the copy of the
petitions sent to the Respondents.

ALJs have shown considerable leniency when the Secretary fails to include copies of the
citations with the petition for civil penalty by allowing the Secretary to amend the pleadings to
perfect the petition. See, e.g., Quapaw Company, 19 FMSHRC 1927 (1997) (ALJ Merlin);
Georges Colliers, Inc., 20 FMSHRC 95 (1998) (ALJ Merlin). The Commission has no specific
rule regarding amendment of pleadings. Commission Rule 29 C.F.R § 2700.1(b), however,
states that “[o]n any procedural question not regulated by the Act, these Procedural Rules, or the
Administrative Procedures Act . . . the Commission and its judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure.”

Federal Rule of Civil Procedure 15(a) governs amendment of pleadings. Rule 15(a)(2)
states that “a party may amend its pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice so requires.” The Commission has
applied a liberal application of Rule 15(a), explaining that “amendments are to be liberally
granted unless the moving party has been guilty of bad faith, has acted for the purpose of delay,
or where the trial of the issue will be unduly delayed.” See Wyoming Fuel, 14 FMSHRC 1282,
1290 (Aug. 1992), citing Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990).

Dismissal without a finding on the merits is a harsh outcome, and one that must be
judiciously applied. Long Branch Energy, 33 FMSHRC 1960, 1977 n.18 (2011) (ALJ
McCarthy). While the Secretary’s oversight is regrettable, there is no evidence of bad faith or
intent to delay on the part of the Secretary. In response to the Respondent’s request, the
Secretary amended her petition by providing an electronic copy of the orders and Special

Assessment Narrative Forms on May 22, 2012, well in advance of the hearing. Absent any show
of prejudice to the Respondents, the Motions for Judgement on the Pleadings are DENIED.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Amy Walker, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street SW,
Suite 7T10, Atlanta, GA 30303

Ethan R. Ware, Esq., McNair Law Firm, PA, 1221 Main Street, Ste. 1600, Columbia, SC 29201

Lee W. Zimmerman, Esq., McNair Law Firm, PA, 1221 Main Street, Ste. 1600, Columbia, SC
29201

/tjr 

Amy Walker, Esq.

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street SW, Suite 7T10

Atlanta, GA 30303

Ethan R. Ware, Esq.

McNair Law Firm, PA

1221 Main Street, Ste. 1600

Columbia, SC 29201

Lee W. Zimmerman, Esq.

McNair Law Firm, PA

1221 Main Street, Ste. 1600

Columbia, SC 29201