Donald J. Riffe, employed by Knox Creek Coal Corporation (ALJ decision, November 3, 1999)

Plain-English summary

The Secretary of Labor filed a civil-penalty petition against Donald J. Riffe, employed by Knox Creek Coal Corporation, 26 days after the deadline. The Solicitor asked permission to file late and explained that she misunderstood the office procedure for drafting a new petition in a section 110(c) case. Judge Paul Merlin held that the explanation did not establish adequate cause, particularly because the Solicitor had handled many mine-safety cases. The judge therefore denied the request for leave and dismissed the proceeding.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(a), and 29 C.F.R. §§ 2700.5(d), 2700.26, and 2700.28
• Outcome: Leave to file the late petition was denied, and the civil-penalty proceeding was dismissed.
• Key point: A solicitor’s misunderstanding of basic filing procedures does not establish adequate cause for a late penalty petition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA), : Docket No. VA 99-128
Petitioner : A. C. No. 06872-03509 A
:
v. : Kennedy #2
DONALD J. RIFFE, EMPLOYED
:
BY KNOX CREEK COAL
:
CORPORATION,
:
Respondent
:

ORDER OF DISMISSAL

Before: Judge Merlin

This case is a petition for the assessment of a civil penalty filed by the Secretary of Labor under section 110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(a).

The Solicitor has filed a motion for leave to file her petition out of time and the operator has filed a response in opposition.

On July 21, 1999, the Secretary issued a notice of proposed civil penalty assessment. The respondent timely contested this assessment by filing a request for hearing within 30 days. The request was received on August 10, 1999. 29 C.F.R. § 2700.26. The Secretary had 45 days after receipt of the contest to file the penalty petition. 29 C.F.R. § 2700.28. Therefore, the petition was due on September 24, 1999, but the Solicitor did not file until October 20, 1999. 29 C.F.R.
§ 2700.5(d). It was, therefore, 26 days late.

The Commission has permitted late filing of penalty petitions where the Secretary demonstrates adequate cause for the delay and where the respondent fails to show prejudice from the delay. Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981). The Secretary must establish adequate cause for the delay in filing, apart from any consideration of whether the operator was prejudiced by the delay. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989). A determination of adequate cause is based upon the reasons offered and the extent of the delay.

In this case the sole basis for the Solicitor’s request to permit late filing is her own misunderstanding of procedures followed in her office. She states that she was unaware that she

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was required to draft a new petition in a 110 (c) case, because in 110(a) cases a petition is automatically generated upon assignment. This Solicitor has handled many mine safety cases. I find that her professed lack of understanding of such basic and simple procedures does not constitute adequate cause. This type of excuse could be made in virtually any case where the Solicitor is late.

In light of the foregoing, it is ORDERED that this case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)