Roger Christensen and Jesse Martinez, employed by Georgia-Pacific Corporation

Plain-English summary

The Secretary filed section 110(c) civil penalty petitions against Roger Christensen and Jesse Martinez, employees of Georgia-Pacific at Gypsum Quarry No. 6. The petitions were filed 10 and 16 days late after a partial government shutdown delayed the Solicitor’s office. Chief Administrative Law Judge Paul Merlin found good cause for the delay and no specific prejudice beyond the passage of time. He denied the respondents’ motions to dismiss, accepted the late petitions, and assigned the cases to another administrative law judge for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 810(c), 30 U.S.C. § 810(a), 29 C.F.R. §§ 2700.28 and 2700.5(d)
• Outcome: The motions to dismiss were denied, the late penalty petitions were accepted, and the cases were assigned for continued proceedings.
• Key point: A short filing delay caused by a government shutdown supported acceptance of late Mine Act penalty petitions when the Secretary showed good cause and the respondents did not establish specific prejudice.

Full text (FMSHRC public release)

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

                        June 6, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-98-M
Petitioner : A. C. No. 48-01019-05525A
:
v. : Gypsum Quarry No. 6
:
ROGER CHRISTENSEN, EMPLOYED :
BY GEORGIA-PACIFIC :
CORPORATION, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-99-M
Petitioner : A. C. No. 48-01019-05526A
v. :
:
JESSE MARTINEZ, EMPLOYED : Gypsum Quarry No. 6
BY GEORGIA-PACIFIC :
CORPORATION, :
Respondent :

             ORDER DENYING MOTION TO DISMISS
               ORDER ACCEPTING LATE FILING
                   ORDER OF ASSIGNMENT

 These cases are petitions for the assessment of civil

penalties filed by the Secretary of Labor against the individual
respondents, Roger Christensen and Jesse Martinez, under
section 110(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 810(c), hereinafter referred to as the “Act”.

 The instant cases are based upon a citation dated August 22,

1994, issued to respondents’ employer, Georgia-Pacific Corpora-
tion, for an alleged violation of the Act and its mandatory
standards. A penalty petition was previously filed under section
110(a) of the Act, 30 U.S.C. § 810(a), against the employer and
that case, Docket No. WEST 95-326, is presently on stay before
Administrative Law Judge August F. Cetti pending assignment of
these cases.

Page 2

 Respondents have filed motions to dismiss on the ground that

the Secretary has failed to timely file the penalty petitions.
The Secretary filed a response.

 On April 5, 1996, the respondents filed a supplement in

support of their motions to dismiss advising that the inspector
who issued the citation for these cases recently died of cancer.
Respondents assert that they are further prejudiced by this
development.

 On April 15, 1996, an order was issued directing the Solici-

tor to respond to the respondents’ April 5 supplemental reply and
advise how she wished to proceed in this matter.

 On May 15, 1996, the Solicitor advised that a mistake has

occurred and the inspector who issued the citation for these
cases has not died and is available to testify. It remains to be
resolved whether the respondents’ original motion to dismiss
should be granted.

 On November 13, 1995, the Secretary of Labor issued proposed

penalty assessments against respondents. Thereafter, respondents
filed timely requests for hearing which were received by the
Secretary on December 7, 1995. The Secretary had 45 days after
the hearing requests to file the penalty petitions. 29 C.F.R.
§ 2700.28. The petition for Docket No. WEST 96-98-M was filed on
February 6, 1996, and the petition for Docket No. WEST 96-99 was
filed on February 1, 1996. 29 C.F.R. § 2700.5(d). The petitions
were due on January 22, 1996, and therefore, were 10 and 16 days
late respectively.

 The Solicitor attached a notice to her penalty petitions

stating that the petitions were untimely because the employees of
the Department of Labor together with many other parts of the
Government were placed on furlough from December 15, 1995, to
January 8, 1996. The Solicitor advises that these cases were
received by the Denver Office of the Solicitor on December 24,
1995, when the office was closed due to the shutdown. When the
office reopened, petitions were filed with the Commission in the
order they were received. In addition, the Solicitor states that
the Secretary requested an extension of time in a letter sent to
the undersigned prior to the shutdown advising that certain
filings would be late due to the shutdown and requesting that the
time for filing be tolled.

 In seeking to have these cases dismissed because the peti-

tions were not timely filed within 45 days, respondents argue
that the Secretary has failed to demonstrate adequate cause for
the late filing. Respondents assert that their requests for

                            2

Page 3

hearing were filed one week prior to the furlough and the Govern-
ment reopened two weeks prior to the date the petitions were due.
According to respondents, they have been prejudiced because the
citation in question was issued over a year and half ago and they
have not had access to all information supporting the petitions.

 The arguments of respondents are not persuasive. The delay

was caused by the three week partial government shutdown which
caused a backup in the Solicitor’s work. When the Government
reopened, it was not just a matter of filing the petitions in these
cases, but of coping with all the work which had not been processed
for the period involved. The Solicitor’s approach of filing
petitions in order of their receipt was fair and reasonable. The
shutdown constituted good cause for the Solicitor’s brief delay in
filing the petitions. Secretary of Labor v. Bruce Eaton, Employed
by Austin Powder Company, Docket No. YORK 96-13-M, unpublished
(March 3 1996). See also, Salt Lake County Road Department,
3 FMSHRC 1714, 1716 (July 1981); Rhone-Poulenc of Wyoming Co.,
15 FMSHRC 2089 (Oct. 1989).

 Respondents allege they have been prejudiced by the delay in

filing the petitions. Much of the delay occurred between the
issuance of the citation and the Notice of Proposed Assessment,
almost fifteen months. I previously have held that a seventeen
month delay in assessing penalties against an individual under
section 110(c) does not constitute grounds for dismissal. A
comprehensive investigation and various levels of internal review
are necessary for a proper evaluation of agent liability and the
existence of a knowing violation in a 110(c) case. Secretary of
Labor v. James Lee Hancock, Employed by Pittsburg & Midway Coal
Co., 17 FMSHRC 1671, 1674-1675 (September 1995). See also, Cedar
Creek Quarries et al., 17 FMSHRC 1509 (August 1995). Also,
respondents have furnished no specifics beyond the general
assertion of prejudice. I will not in these cases infer
prejudice solely from the passage of time.

 In light of the foregoing, the respondents’ motions to

dismiss these cases are DENIED, and it is ORDERED that the late
filed penalty petitions be ACCEPTED.

 It is further ORDERED that these cases be assigned to

Administrative Law Judge Cetti.

                             4

Page 4

 All future communications regarding these cases should be

addressed to Judge Cetti at the following address:

      Federal Mine Safety and Health
           Review Commission
      Office of Administrative Law Judges
      Colonnade Center
      Room 280, 1244 Speer Boulevard
      Denver, CO 80204

      Telephone No. 303-844-3993




                             Paul Merlin
                             Chief Administrative Law Judge

Distribution: (Certified Mail)

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

Charles H. Morgan, Esq., Alston & Bird, One Atlantic Center, 1201
West Peachtree Street, Atlanta, GA 30309-3424

Mr. Paul Larson, Production Manager, Georgia-Pacific Corp., P. O.
Box 756, Lovell, WY 82431

Cement, Lime & Gypsum Workers, 161 Washakie, Lovell, WY 82431

/gl

                               5