Christopher Brinson, Gerald Hastings, and Ronald Colson employed by Kentucky-Tennessee Clay Co.

Plain-English summary

MSHA sought individual penalties against three Kentucky-Tennessee Clay managers after a rail-car accident, but it did not issue the assessments until almost two and a half years after citing the company. Judge Jeffrey Tureck held that the Mine Act's reasonable-time period began when MSHA completed its special investigation, not when the underlying citation was issued, and the assessments followed within two weeks. He also found in the alternative that MSHA had adequately explained the delay through its increased enforcement workload. None of the managers showed actual prejudice beyond general concerns about faded memories or changed employment circumstances. The judge denied all three motions to dismiss and allowed the individual penalty cases to continue.

Decision snapshot

• Governing authority: 30 U.S.C. §§ 815(a) and 820(c)
• Outcome: The three motions to dismiss for delay were denied.
• Key point: The reasonable-time period ran from completion of the special investigation, and delay alone did not establish the actual prejudice required for dismissal.

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 20004-1710

May 7, 2013

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA), 

Petitioner, 

v.

CHRISTOPHER BRINSON, employed by 

KENTUCKY-TENNESSEE CLAY CO. 

Respondent.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), 

Petitioner, 

v.

GERALD HASTINGS, employed by 

KENTUCKY-TENNESSEE CLAY CO.

Respondent. 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),  Petitioner, 

v.

RONALD COLSON,

employed by KENTUCKY-TENNESSEE

CLAY COMPANY,

Respondent.

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CIVIL PENALTY PROCEEDINGS

Docket No. SE 2012-340-M

A.C. No. 09-00121-00281645 A

Docket No. SE 2012-370-M

A.C. No. 09-00121-00281644 A

Docket No. SE 2012-378-M

A.C. No. 09-00121-00281643 A

Mine: Kentucky-Tennessee Clay Company

ORDER DENYING MOTIONS TO DISMISS

Before:Judge Tureck

These three cases are proceedings under § 110(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 820 (“ Mine Act”). The Respondents, through counsel, have moved to
dismiss the respective petitions for assessment of civil penalty brought against them by the
Secretary of Labor. The Secretary opposes the motions. For the reasons set forth below, the
motions to dismiss are denied.

According to Respondents’ motions to dismiss, which are substantively identical in most
respects,

on August 27, 2009, a Kentucky-Tennessee Clay Company (“K-T Clay”) employee
was cleaning the inside of a rail car when another rail car struck the car in which the K-T Clay
employee was working. Resp’t Mot. 1. The impact knocked the employee down and bruised his
lower back. Resp’t Mot. at 2. 

The Mine Safety and Health Administration (“MSHA”) investigated the accident on
September 1, 2009, and issued a citation against K-T Clay on September 4, 2009. The citation
alleged that “[t]he management of the company was allowing persons to work inside the rail tank
cars without having a second person tend the lifeline.” Id.; Ex. 2. MSHA also commenced a
§ 110(c) investigation to determine if penalties should be sought against any director, officer or
agent of K-T Clay. Resp’t Mot. at 2.

Ronald Colson was employed by K-T Clay as its Safety Environmental Director on
August 27, 2009. He retired from K-T Clay’s employ in October, 2010. MSHA issued a petition
for a penalty assessment of $3,200 against him on February 28, 2012, almost two and a half years
after the citation to K-T Clay was issued.

Christopher Brinson is the production manager at K-T Clay, the position he held at the
time of the accident. MSHA issued a petition for a penalty assessment of $2,900 against him on
February 28, 2012.

Gerald Hastings is employed as the Senior Engineering Manager at K-T Clay. On August
27, 2009, he was filling in as the Kaolin Operations Manager. MSHA issued a petition for
penalty assessment of $2,800 against him on February 29, 2012. 

The Respondents, in their motions to dismiss, argue that the § 110(c) cases against them
should be dismissed on the ground that the penalty assessments were untimely. Specifically, the
Respondents argue that: (1) the Mine Act requires that penalties be assessed within a “reasonable
time”; (2) ALJs have held that the Administrative Procedure Act requires timely agency action in
§ 110(c) cases; (3) the Secretary’s own Program Policy Manual defines timely assessments as
occurring within 18 months of the issuance of a citation or order; (4) an ALJ may vacate a
citation if a penalty is not assessed within a reasonable time; (5) MSHA did not issue a penalty
assessment against them within a reasonable time; (6) there was no adequate cause for the delay
in assessing the penalties; (7) Respondents are prejudiced by the delay; and (8) public policy
concerns favor dismissal.

The Secretary, in response, argues that: (1) MSHA issued its assessments against the
Respondents within a reasonable time; (2) there is adequate cause for the alleged unreasonable
delay; (3) the Secretary is entitled to Chevron deference; (4) the Secretary of Labor v.
Twentymile Coal Company precludes dismissal of this case; and (5) the Respondents have been
unable to show actual prejudice.

The Secretary concludes his response to the motions to dismiss by stating that “the
Commission does not have the authority to dismiss this case for failure to comply with the
timeliness requirements set forth in Section 105(a) of the Act.” Sec’y Resp. at 9. No authority is
cited for this audacious statement, and none is known to me. Nevertheless, for the reasons set
out below, Respondents’ motions to dismiss the above-captioned cases are denied.

DISCUSSION

Section 105(a) of the Act provides that “[i]f, after an inspection or investigation, the
Secretary issues a citation or order under section 104, he shall, within a reasonable time after the
termination of such inspection or investigation, notify the operator . . . of the civil penalty
proposed to be assessed . . . for the violation cited . . . .” (Emphasis added.) Section 110(c) is
silent regarding when an individual respondent must be notified of a proposed penalty
assessment. However, since penalty assessments against individuals brought under § 110(c) arise
from the same inspections as penalty assessments against operators, it would logically follow that
the reasonable time requirement of § 105(a) should apply to penalty assessments brought under
§ 110(c). Consistent with this rationale, the “reasonable time” requirement has been held to
apply to § 110(c) cases by Commission administrative law judges. See, e.g., Reasor, 34
FMSHRC 943 (April 2012) (ALJ); Wayne Jones, 20 FMSHRC 1267 (Nov. 1998)(ALJ); James
Lee Hancock, 17 FMSHRC 1671 (Sept. 1995) (ALJ). Moreover, none of the parties here dispute
the application of § 105(c)’s “reasonable time” standard to these § 110(c) cases. Accordingly,
the issue to be decided here is whether the filing of the petitions for the assessment of penalties
against the three Respondents were issued within a reasonable time.

I

The primary issue on which the parties focused was whether the almost two and a half
year period between the issuance of the citation to K-T Clay and the notices of proposed assessed
penalties served on the parties constituted a “reasonable time.” In this regard, the Respondents
spent virtually all of their motions to dismiss arguing that these actions were precluded because
under § 105(a), proposed penalty assessments must be issued within a “reasonable time” after a
citation or order is issued; this requirement applies to cases brought under § 110(c); and the two
and a half years between the issuance of the citation to K-T Clay and the notices of assessed
penalties was unreasonable. The Secretary focused on this aspect of the case as well, primarily
relying on Salt Lake County Road Department, 3 FMSHRC 1714 (July 1981), to support his
position.

Alternatively, the Secretary argues that there was no unreasonable delay, contending that
whether the proposed assessed penalties were issued within a reasonable time should be
measured from the date the special investigation conducted pursuant to § 110(c) ended, not from
the date the citation was issued to K-T Clay. The Secretary points out that the parties here
received their respective proposed penalty assessments on February 28 and 29, 2012, and the
special investigations concluded on February 17, 2012, when the matters were referred to
MSHA’s Office of Assessments. Sec’y Resp. at 4. The notices of proposed assessed penalties
were issued to Colson and Brinson on February 28, 2012, and to Hastings on February 29, 2012.
If the Secretary’s position is accepted, then the notices of proposed assessed penalties were
issued within two weeks after the investigation ended, which clearly would have been within a
reasonable time.

In Secretary of Labor v. Twentymile Coal Co., 411 F.3d 256 (D.C.Cir. 2005), a case
involving “serious, but non-fatal, head injuries . . .”, the court held that the requirement in
§ 105(a) that notices of proposed penalty assessments be issued “within a reasonable time” does
not start running when the underlying citation or order is issued. Id. at 261. The court stated that
the period cannot start running “before the mine had an opportunity to respond to the order,”
since one of the factors to be considered in assessing a penalty against a respondent is how the
mine abated the citation. Id. at 262. Instead, the court held that the period starts running when
MSHA completes its investigation. The court gave deference to the Secretary’s position in that
litigation that the investigation ended when an accident investigation report was issued. Id. at
261.

Applying the D.C. Circuit’s decision in Twentymile to this case, it is the date the special
investigation ended rather than the date the citation to K-T Clay was issued from which
“reasonable time” is to be measured. Further, I must give deference to the Secretary’s contention
that the special investigation ended on February 17, 2012. As was pointed out above, the notices
of proposed assessed penalties were issued on February 28 and 29, 2012. Accordingly, there was
no delay at all in the issuance of the notices of proposed assessed penalties, and they were issued
within a reasonable time.

Therefore, the Respondents’ motions to dismiss these penalty proceedings are denied.

II

Alternatively, assuming, arguendo, that “reasonable time” should be measured from the
issuance of the citation, the motion to dismiss would still be denied.  

The Senate Committee that drafted the Mine Act commented on the Secretary's statutory
responsibility to act “within a reasonable time”and noted that “there may be circumstances,
although rare, when prompt proposal of a penalty may not be possible, and the Committee does
not expect that the failure to propose a penalty with promptness shall vitiate any proposed
penalty proceeding.” S. Rep. No. 95-181, 95th Cong., 1st Sess. 34 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 622 (1978).

In Salt Lake County, supra, the Commission established a two-part test for determining
whether a case should be dismissed when the 45 day deadline for the Secretary to file a petition
for the assessment of a penalty with the Commission, as is required by 29 C.F.R. §
29.2700.28(a), was violated. The case held that the Secretary bears the initial burden of
establishing that there was adequate cause for the late filing of the notice of the proposed penalty
petition. If that burden is met, the Respondent must show actual prejudice due to the late filing.
Id. at 1716. Recently, in Long Branch Energy, 34 FMSHRC 1984 (Aug. 2012), the Commission
stated that adequate cause should be found to exist when the Secretary provides a non-frivolous
explanation for the delay. Id. at 1991. Once the Secretary meets this burden, an operator must
show at least some actual prejudice from the delay. Id. Mere allegations of potential prejudice
or inherent prejudice should be rejected. Id. If prejudice is proven, the judge must weigh the
prejudice caused by the delay against the public interest in upholding the enforcement purpose of
the Mine Act. Id. Commission enforcement of the filing time limits is a secondary consideration
to the primary purpose of ensuring prompt enforcement of the Act’s penalty scheme. Id. at
1990.

Salt Lake County and Long Branch do not concern the period to notify respondents of
proposed penalties under § 105(a) of the Mine Act. See Salt Lake County, at 1715; Long Branch,
at 1985. Nevertheless, these decisions are applicable here because they concern the length of
time it is reasonable to permit the Secretary to delay an action and the legal standard to apply in
making this analysis, the precise issue these cases raise. In Salt Lake County, the petition for the
assessment of the civil penalty was filed with the Commission two months late; in Long Branch,
the seven penalty petitions were filed from 7-1/2 to 11 months late. Id.              

The only citation issued in connection with these three § 110(c) cases is the September 4,
2009 citation issued to K-T Clay. Therefore, assuming the clock started running when the
citation issued, the reasonable time requirement for notifying the Respondents of the proposed
penalties began on September 4, 2009. From September 4, 2009, it took until February 29, 2012

• almost two and a half years - for MSHA to complete its investigations and issue the penalty
  assessments. Sec’y Resp. at 1. The question to be addressed is whether taking close to two and a
  half years to complete the investigations was reasonable.

MSHA’s Program Policy Manual (“PPM”) provides information regarding what is
considered a “reasonable time” for assessing civil penalties under § 110(c):

Investigative timeframes have been established to help ensure the timely
assessment of civil penalties against corporate directors, officers, and agents.
Normally, such assessments will be issued within 18 months from the date of
issuance of the subject citation or order. However, if the 18 month timeframe is
exceeded, TCIO will review the case and decide whether to refer it to the Office
of Special Assessments for penalty proposal. In such cases, the referral
memorandum to the Office of Special Assessments will be signed by the
Administrator.

I MSHA, U.S. Dep’t of Labor, Program Policy Manual, § 110 (1996). Although the PPM is not
binding on the Secretary,

it does show MSHA’s expectation regarding how long it should take to
complete a §110(c) investigation from the issuance of a citation or order. By taking two and a
half years instead of 18 months, MSHA failed to meet its own standard for a timely investigation
in these cases.

The Secretary argues that there is adequate cause for why MSHA took two and a half
years to complete its special investigations and issue the proposed penalty assessments against
the Respondents. Specifically, MSHA has enhanced its enforcement efforts over the past five
years, including increasing the number of inspectors employed nationally, which has caused the
number of citations issued to rise substantially. Sec’y Resp. at 3; Long Branch at 1994. The rate
at which operators contest these citations has also increased. Id. Thus, MSHA is now evaluating
and processing civil penalties for an “unprecedented number of violations.” Sec’y Resp. at 3.
That MSHA’s workload has dramatically increased in recent years was the basis for the
Commission’s holding in Long Branch that adequate cause for the delay in that case was
established. Long Branch at 1995.

The Secretary further argues that taking two and a half years
to complete an investigation is reasonable given the number of citations that MSHA must
process, the need for a deliberate and careful investigation in § 110(c) investigations, and that
this investigation involves three management employees and relates to an injury. Id. at 4.

Thus, the relevant question now is whether the Secretary has met the burden to show that there was an adequate cause for taking two and a half years to issue the penalty petitions against
the Respondents. As stated above, the Secretary offered several reasons for the undue delay.
First, § 110(c) cases are similar to criminal investigations since they have higher stakes than a
regular § 105(a) civil penalty petition. They affect individual rights and may lead to civil money
penalties, fines, or criminal prosecution. However, I would argue that § 110(c) are no more
important - may even be less important - in achieving the Mine Act’s overall goal of mine safety
than cases brought against operators. Second, the Secretary contends that the investigation in this
case may have been complicated because an injury occurred and at least three agents needed to
be investigated. Id. at 4. But no evidence was presented to support this contention.

Third, the Secretary argues that the increase in citations issued over the past five years
and the resulting increase in the number of contests by operators naturally has expanded the
burden upon the offices involved in a special investigation.            Although it is hard to comprehend why the Secretary has set up such a cumbersome
procedure for determining whether penalties should be assessed against individuals,

there is no
doubt that MSHA’s workload has dramatically increased in recent years. I take judicial notice
that the total number of citations and orders issued by MSHA to both coal and non-metal mines
increased 49 percent from calender year 2002 to calendar year 2011.

In addition, the total
number of citations and orders issued by MSHA to both coal and non-metal mines increased 13
percent from calendar year 2006 to calendar year 2011. Id. Although this data shows that there
was an increase in citations and orders in 2009, it is unclear whether this increase in citations and
orders also led to a direct increase in § 110(c) special investigations. The Secretary did not
explain whether this occurred in his Response nor if the number of employees working on §
110(c) cases was reduced to handle the influx of other work. Nevertheless, it is clear that
MSHA’s workload has gone up dramatically in recent years.

The delay of two and a half years was significant, and may be near the breaking point for
what should be considered acceptable delay. In this respect, it should be noted that the longest
delay in Long Branch was 11 months, although it should be kept in mind that the deadline which
was not met in that case was only 45 days. Missing a 45 day deadline by about 335 days may be
more significant than missing an amorphous “reasonable time” deadline by two and a half years.
In any event, courts have been reluctant to dismiss cases involving non-jurisdictional deadlines
when important public rights are at stake. For example, Brock v. Pierce County, 476 U.S. 253
(1986), concerned a requirement under the Comprehensive Employment and Training Act that
the Secretary of Labor issue a final determination within 120 days of receiving a complaint that
funds were being misused. Id. at 255-56. The Secretary failed to make two final determinations
within the requisite 120 day period; as in these three cases, the Secretary took two and a half
years to make those determinations. Therefore, the respondent county argued that it could not be
ordered to repay the allegedly misspent funds. Id. at 257. However, the Supreme Court held that
Congress did not intend to impose a jurisdictional limitation on the Secretary’s enforcement
powers by the 120 day provision. The Court opined that it would be “most reluctant to conclude
that every failure of an agency to observe a procedural requirement voids subsequent agency
action, especially when important public rights are at stake. When, as here, there are less drastic
remedies available for failure to meet a statutory deadline, courts should not assume that
Congress intended the agency to lose its power to act.” Id. at 260. The D.C. Circuit cited this
case in Twentymile in holding that the Secretary’s delay was not unreasonable. Twentymile at
261-62.

The Secretary’s action in Brock, which the Court allowed to stand, was a dispute solely
about a relatively small amount of money under two grants (less than $500,000) and,
accordingly, limited public interest. The three cases at issue here concern protecting the health
and safety of miners, a matter of great public interest. That the Court allowed the actions brought
by the Secretary in Brock to stand leads to the conclusion that the Secretary’s actions against
Hastings, Colson and Brinson should not be dismissed just for missing a procedural deadline,
even if missing that deadline resulted in a two and a half year delay.

Moreover, as discussed by the Commission in Long Branch, there is a presumption that
the Secretary’s agents generally act in good faith to uphold the timely enforcement of penalties
assessed under the Act. Long Branch at 1991 n. 11 (quoting Kalvar Corp. v. United States, 543
F.2d 1298, 1299 (Ct. Cl. 1976)). The presumption can be rebutted through evidence that the
delay was willful or a result of intentional misconduct or bad faith. Id. The Respondents have
not presented any such evidence.

The Respondents urge that I dismiss these cases, and cite to cases where other
administrative law judges have dismissed § 110(c) cases for failure to file a penalty petition in a
timely manner. Resp’t Mot. at 6. However, the ALJ decisions cited by the Respondents
occurred during the 1990s and early 2000s, when MSHA was not facing the large influx of
violations and associated contests it is facing at this time. Further, the cases relied on by
Respondents are distinguishable. In Doyal Morgan et al, 20 FMSHRC 38 (Jan. 1998)(ALJ), the
§ 110(c) proceedings were dismissed by the judge because the Solicitor failed to give detailed
information with respect to what transpired to cause a 22 month delay. In Raymond P. Ernst, 18
FMSHRC 1674 (Sept. 1996)(ALJ), the § 110(c) action was dismissed based on the failure of the
Secretary to explain the cause of the delay beyond providing general and vague reasons.

Here, in contrast, the Secretary has provided more than a pro forma explanation regarding
what occurred to cause the delay in the special investigations. Furthermore, dismissal, in the
absence of prejudice, is a harsh remedy that may prevent the Secretary from adequately enforcing
his standards to protect miners’ health and safety under the statutory scheme of the Mine Act.
Consequently, I conclude that the delay at issue here, while regrettable, was adequately explained
by the unusual circumstances that existed during the relevant time period.

Since I find that the Secretary has shown adequate cause for the undue delay, I must now
evaluate whether the Respondents have suffered actual prejudice due to this delay. The
Commission has provided guidance that prejudice means more than “a danger of prejudice.”
Long Branch at 7. The prejudice must, instead, be “real and substantial and demonstrated by a
specific showing by the [Respondent].” Id. The Respondents argue that the delay is
fundamentally unfair and that public policy concerns warrant dismissal. Resp’t Mot. at 8, 10-11.
But delay is fundamentally unfair only if it results in prejudice to the affected parties; and, as the
cases discussed above indicate, public policy concerns argue against dismissal.

Hastings points out he that was moved from his temporary position as Kaolin Operations
Manager back to his original position as Engineering Manager, and was relocated from the city
where the accident occurred to another city. Hasting’s Mot. at 9. He contends that due to these
changes in position and work site his memory and knowledge of the day-to-day activities will
have faded with time. Id. 8-9. I fail to see how either of these changes will prejudice his defense
of the allegations against him. For one thing, Hastings has not explained how the 50 or so miles
between Monticello and Sandersville creates a significant impediment to presenting his defense.
Further, it is not apparent why changing jobs sometime after the incident in question should have
an impact on Hastings’s memory of what occurred that day, and he provides no explanation for
this contention. Colson argues that since he is retired and has not worked with the regulations
and standards for one and a half years he does not have the same command of the subject matter
as he would have absent the inordinate delay. Colson’s Mot. at 9-10. But this is a purely
hypothetical argument, not proof of actual prejudice. Brinson does not point to any specific
factors leading to prejudice, only the general contention that the delay in his case is per se
prejudicial. This is not the proof of prejudice the cases demand.

Although it is possible that the Respondents’ knowledge of the events of August 27, 2009
have faded somewhat in the more than three years since the incident, it is not uncommon for
litigation to occur several years after the events at issue. None of the Respondents here have
alleged anything other than a hypothetical fading of memory, and I will not infer prejudice from
the passage of time alone. Thus, the Respondents have not demonstrated actual prejudice due to
the delay in issuing the petitions for assessment of penalties. Accordingly, the motions to
dismiss these proceedings are denied. 

ORDER

IT IS ORDERED that the motions to dismiss are DENIED.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution (Certified Mail):

Rolesia Butler Dancy, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
Suite 7T10, Atlanta, GA 30303

Willa B. Perlmutter, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Ave., NW, Washington,
DC 20004.

Karen L. Johnston, Esq., Jackson Kelly, 1099 18th Street, Suite 2150, Denver, CO 80202.

Jason M. Nutzman, Esq., Dinsmore & Shohl, 900 Lee Street, Suite 600, Charleston, WV 25301.