Washington Rock Quarries, Inc.

Plain-English summary

Washington Rock Quarries contested citations and proposed penalties at its Champion Pit. The Secretary asked the judge to decide the case without a hearing, arguing that the respondent filed its answer late and that no material facts were disputed. The judge found that the late answer was covered by an extension and that the Secretary's affidavits did not make summary decision appropriate, particularly so close to the scheduled hearing. The judge denied the Secretary's motion, granted the respondent's motion to strike, and kept the hearing on the calendar.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.67, 2700.26, 2700.29, 2700.8, 2700.10, and 2700.1
• Outcome: The Secretary's motion for summary decision was denied, the respondent's motion to strike was granted, and the hearing was scheduled to proceed.
• Key point: A late answer was not jurisdictional, and a summary-decision motion filed shortly before a scheduled hearing did not justify canceling that hearing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                                     January 10, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-411-M
Petitioner : A.C. No. 45-03224-05515
:
v. :
: Champion Pit
WASHINGTON ROCK QUARRIES, INC., :
Respondent :

            ORDER DENYING MOTION FOR SUMMARY DECISION

     Counsel for the Secretary filed a motion for summary decision in this case. The motion

was mailed on January 3, 2001. The hearing in the case is scheduled for January 17, 2001. The
Secretary sets forth two grounds for the motion. First, she states that she should be granted
summary decision as a matter of law because Respondent exceeded the time required “to contest
the citations.” Second, she contends that there are no genuine issues of material fact with respect
to the merits of the case. Respondent opposes the Secretary’s motion or, in the alternative, asks
that it be granted an opportunity to respond in full.

    The Commission’s Procedural Rules provide that a “motion for summary decision shall be

granted only if the entire record, including pleadings, depositions, answers to interrogatories,
admissions, and affidavits shows: (1) that there is no genuine issue as to any materials facts; and
(2) that the moving party is entitled to summary decision as a matter of law.” 29 C.F.R.
§ 2700.67(b). The Commission’s procedural rule further states that a motion for summary
decision must be supported. The Secretary attached affidavits of MSHA Inspectors Randy W.
Horn and Rick Dance.

    With respect to the Secretary’s first ground for the motion, I note that the Secretary, on or

about August 14, 2000, filed a motion with the Commission’s chief administrative law judge
requesting a “summary order assessing the proposed penalties as final and directing that such
penalties be paid.” She based this motion on the fact that an answer to her petition for penalty
had not yet been filed. By order dated August 24, 2000, the chief judge denied the motion. In
addition, on August 10, 2000, the chief judge issued an order to show cause granting Respondent
30 days from that date to file its answer. Counsel for the Respondent filed his appearance and
answer on September 6, 2000, within this 30-day period.

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    It is clear that Respondent intended to contest the citations and penalties when it filed its

notice of contest under 29 C.F.R. § 2700.26. It failed to file an answer to the Secretary’s petition
for penalty within the time required by 29 C.F.R. § 2700.29. This 30-day requirement is not
jurisdictional and the Commission’s chief judge, in effect, granted Respondent a 30-day extension
of time. The cases cited by the Secretary on page 11 of its motion are not applicable. Those
cases concern late-filed pre-penalty contests of citations and orders under 29 C.F.R. § 2700.20.
This case is a penalty proceeding and concerns a late-filed answer to the Secretary’s petition for
penalty. Commission law with respect to these distinct issues is not the same. Consequently, I
deny this portion of the Secretary’s motion.

      The Secretary also contends that there is no genuine issue of material fact and that she is

entitled to summary decision as a matter of law on the merits of the case. She attached affidavits
of the two MSHA inspectors that issued the citations at issue in these cases. These affidavits,
which total about seven pages, set forth the observations and conclusions of the inspectors. The
affidavits are a summary of what they would testify to at a hearing. Under the Commission’s
procedural rules, “when a motion for summary decision is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for a hearing.” 29 C.F.R. § 2700.67(c). Under rule 2700.10, a party
has ten days to respond to a motion. Five days are automatically added to the response time
when service is by mail, as it was in this case. 29 C.F.R. § 2700.8. Thus, Respondent has 15 days
to file its response to the Secretary’s motion for summary decision.

     On November 1, 2000, I issued an order setting this case for hearing on January 17, 2001.

Because the Secretary did not file and serve her motion for summary decision until January 3,
2001, Respondent’s reply is not due until January 18, 2001. Thus, by filing this motion, the
Secretary is indirectly asking that I cancel the hearing. Under 29 C.F.R. § 2700.67(a), motions
for summary decision must be filed at least 10 days prior to the start of the hearing. Although the
Secretary complied with this minimum requirement, I do not believe that she complied with the
spirit of the Commission’s procedural rules. A party should not be permitted to file a motion for
summary decision 14 days before a scheduled hearing so as to require the cancellation of the
hearing, at least where the motion simply sets forth the party’s evidence to be presented at the
hearing. The Secretary’s motion does not attempt to narrow or focus the issues. It does not raise
issues that are particularly amenable to resolution through summary proceedings.

   Granting the Secretary’s motion would not “secure the just, speedy and inexpensive

determination” of the issues in this case. 29 C.F.R. § 2700.1(c). If I canceled the hearing to
allow Respondent the opportunity to reply to the Secretary’s motion, it is foreseeable that
Respondent will respond with an affidavit that challenges some of the material facts set forth by
the Secretary. I would then have to deny the motion and reschedule the hearing for a later date.
Consequently, I deny this portion of the Secretary’s motion as well.

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Page 3

     For the reasons set forth above, the Secretary’s motion for summary decision is DENIED

and Respondent’s motion to strike the Secretary’s motion is GRANTED. Unless the parties
settle this case, the hearing will proceed as scheduled on January 17, 2001. The exact courtroom
in which the hearing will be held has been changed. The hearing will be in Courtroom 815 on the
8th Floor of the United States Courthouse, 1010 Fifth Avenue, Seattle. The hearing will
commence at 9:00 a.m.

                                        Richard W. Manning
                                        Administrative Law Judge

Distribution:

Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212 (Fax and First Class Mail)

Richard M. Slagle, Esq., Slagle, Morgan & Ellsworth, 1000 Second Avenue, Suite 1580, Seattle,
WA 98104-1046 (Fax and First Class Mail)

RWM

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