Farmer v. Island Creek Coal Co.

Plain-English summary

Roy Farmer, a miners’ representative, filed a compensation complaint for about 275 miners who were idled after MSHA issued an imminent-danger order at Island Creek Coal’s Virginia Pocahontas No. 3 Mine. Island Creek argued that the complaint was filed after the 90-day period in Commission Procedural Rule 35 and should be dismissed. The Commission held that the late filing could be excused because the judge credited evidence that Farmer did not know the filing requirements, was told compensation would wait until an underlying citation contest ended, and was not materially prejudiced by the delay. It affirmed the denial of the motion to dismiss and remanded the compensation matter for further proceedings while the underlying citation contest remained pending.

Decision snapshot

• Governing authorities: 30 U.S.C. § 817(a), § 814(a), and § 821; 29 C.F.R. § 2700.35 and § 2700.65(a)
• Outcome: The denial of Island Creek’s motion to dismiss was affirmed, and the compensation matter was remanded for further proceedings.
• Key point: A filing deadline in the Commission’s procedural rules may be waived when genuine ignorance and the surrounding circumstances justify the delay without material legal prejudice.

Full text (FMSHRC public release)

CCASE:
ROY FARMER AND OTHERS V. ISLAND CREEK
DDATE:
19920902
TTEXT
September 2, 1992
ROY FARMER AND OTHERS

v. Docket No. VA 91-31-C

ISLAND CREEK COAL CO.

BEFORE: Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This complaint for compensation, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C • 801 et seq. (1988) ("Mine Act"), is before
the Commission a second time. Respondent, Island Creek, seeks interlocutory
review of Commission Administrative Law Judge Gary Melick's September 27,
1991, decision denying the operator's motion to dismiss the complaint for
compensation as untimely filed. 13 FMSHRC 1564. Judge Melick's decision was
issued pursuant to the Commission's May 9, 1991, decision (13 FMSHRC
1226)(Footnote 1) vacating an earlier order of dismissal issued by Commission
Administrative Law Judge James Broderick (12 FMSHRC 2641 (December
1990)) and
remanding the matter to determine "whether appropriate circumstances exist to
excuse the late filing of the compensation complaint and to allow this matter
to go forward." 13 FMSHRC at 1233.(Footnote 2) For the reasons that follow,
we affirm the judge's denial of Island Creek's motion to dismiss.
I.
Factual and Procedural History
Island Creek operates the Virginia Pocahantas No.3 Mine in Southwest
Virginia. On April 17, 1990, a representative of the Department of Labor's
Mine Safety and Health Administration (MSHA) issued a section 107(a), 30
U.S.C. • 817(a), imminent danger order alleging excessive methane
concentrations in the mine's bleeder system and also issued a section 104(a),
30 U.S.C. • 814(a), citation alleging a violation of the mine's ventilation
plan. All miners were withdrawn from the mine until the order was terminated

1 The decision appears in the August 1991 Volume of Commission decisions.

2 Following remand, the case was reassigned from Judge Broderick to Judge
Melick.
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on April 20, 1990. Under section 111 of the Act, 30 U.S.C. • 821, if miners
are idled by a section 107(a) order issued for a failure to comply with a

Page 2

mandatory standard, they are entitled to compensation for the time they are
idled, up to one week. (Footnote 3)
Roy Farmer, a miners' representative, filed a "Request for Compensation
per section 111 of the Coal Mine Safety and Health Act of 1977," by letter
dated October 29, 1990, and received by the Commission on November 2, 1990.
The request indicated the dates for which compensation was sought, stated that
Island Creek had refused to provide the compensation, and included a list of
approximately 275 miners alleged to have been idled by the imminent danger
order.
Island Creek filed an answer on November 28, 1990, wherein it asserted
two affirmative defenses: that the complaint was not filed within the time
period (90 days) set forth in Commission Procedural Rule 35, 29 CFR • 2700.35
("Rule 35") and that Island Creek did not violate any mandatory standard that
would give rise to a claim for compensation. On November 30, Island Creek
filed a motion to dismiss the complaint for compensation as untimely filed,
which Judge Broderick granted by order of December 20. In his order of
dismissal, the judge noted that the complaint was filed 198 days after the
idlement and 108 days beyond the time allowed in Rule 35. He also noted that
Farmer's November 2, 1990 filing lacked any explanation for the delay. 12
FMSHRC at 2641.
On January 4, 1991, Farmer, acting pro se, filed a petition for review
of Judge Broderick's order of dismissal, in which he alleged that he had been
told by an Island Creek representative that the miners would be compensated
for their idlement once the contest of the citation was resolved and if the
operator was found to have violated the ventilation plan. Farmer also
asserted that he had been told by representatives of both MSHA and this
Commission(Footnote 4) that there was no time limit on filing such a complaint
but that, even if there were a limit, it would not begin to run until the
contest of the citation was resolved against Island Creek. Farmer asserted,
additionally, that the local union's financial inability to retain counsel,
coupled with Farmer's own lack of knowledge of procedural matters, justified
the late filing of the complaint. (Footnote 5)

3 Island Creek has contested the section 104(a) citation in a separate
proceeding, Secretary v. Island Creek Coal Co., Docket No. VA 91-2, pending
before Judge Broderick. By order issued October 10, 1991, Judge Melick stayed
this compensation proceeding pending disposition of the contest proceeding.

4 The record clearly establishes that Farmer did not speak with an attorney
in this Commission as he once believed; rather, he spoke with an attorney in
the Solicitor of Labor's Office. Tr. 118-120.

5 The United Mine Workers of America ("UMWA") filed a "Supplement" to
Farmer's petition, which asserted that Farmer appeared to have been misled by
Island Creek and government officials. The UMWA argued that, under those

Page 3

circumstances, Farmer's late filing of the complaint for compensation and his
~1539
In vacating Judge Broderick's order and remanding the matter for further
proceedings, the Commission noted that, unlike section 105(c) of the Act, 30
U.S.C.• 815(c), section 111 does not specify a time period within which
complaints for compensation must be brought. Rather, the 90-day limit is
derived solely from Rule 35 of the Commission's Procedural Rules. 13 FMSHRC
at 1229. The Commission further noted that the 60-day limit in section 105(c)
is not jurisdictional and that Congress specified that the time limit could be
extended in justifiable circumstances. Citing Loc. U. 5429, UMWA v.
Consolidation Coal Co., 1 FMSHRC 1300 (September 1979) ("Consol"), the
Commission concluded that the 90-day requirement in Rule 35 also could be
waived in appropriate circumstances. 13 FMSHRC at 1230-31. (Footnote 6)
The Commission recounted the assertions made by Farmer in his petition
and concluded that "[i]f true, those allegations could possibly establish
adequate explanation or justification for the late filing." 13 FMSHRC at
1232. However, since the Petition was unsworn and contained no details as to
relevant dates and persons involved, the Commission remanded the matter to the
judge to allow him to "assess the merits of [the] allegations". Id. The
Commission indicated that, even if Farmer could establish an adequate excuse
for the late filing, the complaint might nevertheless be dismissed if the
delay resulted in material legal prejudice to Island Creek. Id.
On remand, Judge Melick first determined that good cause existed for
Farmer's failure to respond to Island Creek's motion to dismiss. He based his
conclusion on the fact that Farmer had made reasonable efforts to obtain
copies of the Commission's procedural rules but without success. The judge
also concluded that Farmer "testified credibly" that he thought there would be
a hearing on the motion to dismiss, thus obviating the need for a written
response. 6 FMSHRC at 1566.
The judge found that there was "adequate justification" for Farmer's
late filing. The judge stated that there was "credible evidence" that Farmer
was ignorant of the filing requirements. The judge also concluded that
despite Farmer's undergraduate degree in business and his "reading the law"
for the Virginia bar, "it cannot reasonably be inferred that he should have
had or should even be expected to have such esoteric knowledge" (of the filing
requirements of Rule 35). Id.
Additionally, the judge found "sufficient credible evidence" that Farmer
had conversed with mine manager Eddie Ball about compensation and that, at the
very least, Ball advised Farmer that nothing would be done about compensation
until the contest of the underlying citation was resolved. The judge fur

subsequent failure to file a response to the motion to dismiss should be
excused. The UMWA cited Commission precedent allowing for relief from
judgements rendered below in default cases. See, e.g., Secretary v. J.R.
Thompson, Inc., 12 FMSHRC 1194 (June 1990).

Page 4

6 In Consol, the Commission determined that Commission Interim Rule 29, the
forerunner to Rule 35, which required complaints for compensation to be filed
within 30 days of idlement, could be extended in appropriate circumstances.
~1540
found that Farmer had contacted MSHA officials on the compensation issue but
was not provided sufficient information to file a timely complaint with the
Commission. Id. Lastly, the judge found insufficient evidence of "legal prejudice' to otherwise warrant dismissal of these proceedings". Accordingly, the judge denied the motion to dismiss and ordered the case to proceed on the merits. Id. II. Disposition of Issues Island Creek argues that the judge's decision should be reversed on three general grounds: (1) that it is contrary to Commission precedent; (2) that it is not supported by substantial evidence; and (3) that it does not comply with Commission Procedural Rule 65(a), 29 CFR • 2700.65(a). The operator contends that, in light of Farmer's experience and education, the judge was bound to dismiss Farmer's complaint by Commission precedent established in Hollis v. Consolidation Coal Co., 6 FMSHRC 21 (January 1984) aff'd mem., 750 F. 2d 1093 (D.C. Cir. 1984) (table). Island Creek notes that Farmer was both local union president and chairman of the union safety committee, that he has an undergraduate degree in business from the University of Virginia and is currently "reading the law" for the Virginia bar under the tutelage of an attorney specializing in workers' compensation cases. In Hollis, the Commission affirmed the dismissal of a section 105(c) discrimination complaint filed four months after the 60-day deadline by a union safety committee chairman with two years of college education. Island Creek contends that the Commission "endorsed an ALJ's finding that the claimantshould have known of his rights under the Act' in light of his
education and experience as a local union official". Br. 6, quoting 6 FMSHRC
at 25. Island Creek argues that Farmer should be held to the same or higher
standard of knowledge as the complainant in Hollis, and his complaint must,
accordingly, be dismissed. The operator further contends that Farmer's
education and experience constitute, at least, constructive knowledge of the
requirement to file a written response to a motion to dismiss.
Island Creek has inaccurately interpreted the Commission's holding in
Hollis. In that case the judge simply did not believe the claimant's
assertion that he was unaware of his rights under section 105(c) of the Act
and, consequently, was unaware of the filing requirements therein. The fact
that Hollis was an active safety committee chairman and had completed two
years of college were considered by the judge as indicators of Hollis' ability
both to understand his rights and to waive them in order to pursue alternative
remedies outside the Mine Act. 6 FMSHRC at 24-25.

Page 5

On review, the Commission upheld the judge's credibility determinations:
When reviewing a judge's credibility
resolutions, as here, our role is
necessarily limited. The judge observed
~1541
Hollis as a witness and did not believe
his testimony of ignorance concerning
his Mine Act rights. We discern nothing
in the record that would justify our
taking the extraordinary step of
overturning this credibility resolution.
6 FMSHRC at 25.
While the Commission concluded that substantial evidence supported "the
judge's inference that Hollis did know of his Mine Act rights during the 60-
day time period", the Commission made no mention of Hollis' educational
background as a factor in its determination that the judge's inferences
supported his disbelief of the complainant's assertions that he was ignorant
of the filing requirements of section 105(c). Thus, Island Creek's contention
that the Commission in Hollis, "endorsed an ALJ's finding that the claimant
`should have known his rights under the [Mine] Act' in light of his education
and experience as a local union official" (Br.6) is incorrect. We reject the
operator's argument that Hollis dictates dismissal of Farmer's complaint for
compensation. On the contrary, we are reluctant to disturb the judge's
credibility determinations here as we were reluctant to disturb the same
judge's credibility determinations in Hollis. The Commission has often stated
"a judge's credibility resolutions cannot be overturned lightly." Hall v.
Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (November 1986).
In arguing that the judge's decision is not supported by substantial
evidence, the operator first contends that the judge failed to address an
issue remanded to him by the Commission. Island Creek notes that, at the start
of the hearing Farmer withdrew his contention that the local union was
financially unable to retain counsel to pursue the compensation claim. The
operator argues that, since the local union's financial inability to retain
counsel was a factor the Commission focused on in its decision to remand, it
was incumbent on the judge to address the issue if only in terms of evaluating
Farmer's credibility. Island Creek further contends that the judge erred in
ignoring the fact that Farmer had access to local and international UMWA
counsel.
Financial inability was only one of several allegations that, as we
stated in our earlier decision, "could possibly establish adequate explanation
or justification for the late filing." 13 FMSHRC at 1232. We conclude that
the judge found sufficient additional justification to excuse the late filing.
We further note that in its brief on review Island Creek concedes that
Farmer's withdrawal of his assertion of financial inability to retain counsel
"might only reflect his confusion about the financial status of his UMWA

Page 6

local." Br. 14.
As for Farmer's access to UMWA counsel, in its brief on review the UMWA
argues that Farmer had no reason to think he needed legal advice since he had
been "lulled" by mine manager Ball into believing that the miners would be
paid. In a somewhat similar vein, the judge concluded that Farmer and Ball
did discuss the compensation issue and that "Ball at the very least advised
~1542
Farmer that nothing would be done about compensation until the contest of the
underlying citation was resolved." 13 FMSHRC at 1566. Given the judge's
conclusion on that issue as well as his earlier conclusion that Farmer was
ignorant of the filing requirements for compensation claims, we infer that the
judge did not find it relevant that Farmer had not sought legal advice from
sources within the UMWA.
Island Creek's other challenges to the judge's decision on substantial
evidence grounds are, in large part, based upon its argument that Farmer, by
reason of his education and experience, should have been charged with actual
or, at least, constructive knowledge of the procedural requirements for filing
complaints for compensation. This argument is, in essence, a reiteration of
Island Creek's contention that Hollis compels dismissal of Farmer's complaint,
an argument that we have rejected.
The relative rarity of compensation complaints in litigation before the
Commission may have led the judge to characterize knowledge of the procedural
requirements relating to such complaints as "esoteric" in nature. 13 FMSHRC
at 1566. Further, unlike section 105(c) of the Act, which sets a 60-day
deadline for filing discrimination complaints, section 111 is silent as to a
filing deadline. That time constraint is set forth in the Commission's
Procedural Rules, which are published in Title 29 of the Code of Federal
Regulations. All other standards and regulations applicable to the Mine Act
are in Title 30 of the Code.
Island Creek's third argument is that the judge failed to comply with
the requirements of Commission Procedural Rule 65(a). The operator contends
that the judge's "summary conclusions" lacked "reasons or bases... on all
material issues of fact, law or discretion presented by the record." Br. 24.
Essentially, Island Creek argues that, although the judge repeatedly refers to
"credible evidence" supporting his decision, he does not address unrebutted
evidence that contradicts Farmer's testimony.
It is important to focus on what the judge concluded on the basis of the
evidence presented. Farmer's petition for discretionary review indicates that
he believed he was misled, intentionally or otherwise, by officials of both
Island Creek and MSHA. The judge found that mine manager Ball said that
"nothing would be done about compensation until the contest of the underlying
citation was resolved" (13 FMSHRC at 1566), a characterization of the Ball-
Farmer conversation that both Ball and Island Creek share. Tr.193-194; Br.

19. The judge found that Farmer "was not provided sufficient information to
    file a timely complaint with this Commission." 13 FMSHRC at 1566. Our

Page 7

reading of the judge's decision with respect to Farmer's contacts with Island
Creek and MSHA is that he concluded that Farmer could reasonably have
believed, on the basis of those contacts, that no action on his part was
necessary while resolution of the underlying citation was still pending. We
find that substantial evidence supports the judge's conclusion.
As for the operator's additional contention, that the judge did not
explain his conclusion that there was "insufficient evidence of `legal
prejudice' to otherwise warrant dismissal of these proceedings" (13 FMSHRC at
1566), we conclude that no explanation was necessary. At the close of the
~1543
hearing, the judge asked whether Island Creek had anything to say with regard
to the legal prejudice issue. Counsel for the operator replied, "Just that we
aren't going to present any evidence in that regard, your Honor." Tr. 203-
204.
In response to the Commission's remand order the judge determined that
Farmer produced "credible evidence" that he was ignorant of Commission
procedures and that he had made reasonable efforts, after filing his complaint
but before Island Creek filed its motion to dismiss, to secure a copy of the
Commission's procedural rules.(Footnote 7) The Commission's remand order
noted that "a miner's genuine ignorance of applicable time limits may excuse a
late filed discrimination complaint." 13 FMSHRC at 1231, citing Walter A.
Schulte v. Lizza Indus, Inc., 6 FMSHRC 8,13 (January 1984). The Commission
stated that this principle was "correspondingly valid in the compensation
complaint context". 13 FMSHRC at 1231. Thus, we find that Farmer's reasons
for his untimely filing, which were credited by the judge, meet the "genuine
ignorance" requirement of Schulte, supra.

7 Island Creek's own Exhibit 4 is a November 6, 1990, letter from Farmer to
the Commission requesting party status in the contest proceeding on the
underlying citation and requesting a copy of the Commission's Procedural
Rules. The letter indicates that it was received by the Commission on
November 14, 1990, eleven days prior to the date of Island Creek's motion to
dismiss.
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Accordingly, the judge's order denying Island Creek's motion to dismiss
is affirmed and the matter is remanded to the judge for further proceedings
pending disposition of the issues in Secretary v. Island Creek Coal Co.,
Docket No. VA 91-2.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner