BGS Construction, Inc.

Plain-English summary

BGS Construction asked the judge to reconsider a ruling that denied its motion to dismiss a civil penalty case based on delay in proposing the penalty. The company argued that the Secretary specially assessed penalties unnecessarily, failed to consider cited authority and policy guidance, and did not justify the delay. Judge T. Todd Hodgdon rejected those arguments and denied reconsideration. He also denied certification for interlocutory review because the ruling did not involve a controlling question of law, and directed counsel to arrange a hearing date.

Decision snapshot

• Cited standards: 30 U.S.C. § 815; 30 C.F.R. § 100.5; 29 C.F.R. §§ 2700.72 and 2700.76(a)(1)
• Outcome: The motions for reconsideration and certification for interlocutory review were denied, and the case was set for a hearing.
• Key point: A party must show a controlling question of law for an interlocutory ruling to be certified for Commission review.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                                       June 20, 2002

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2002-41
Petitioner : A.C. No. 46-01968-03505 ZAG
v. :
: Blacksville No. 2
BGS CONSTRUCTION, INC., :
Respondent :

            ORDER DENYING MOTIONS FOR RECONSIDERATION
                                AND
             CERTIFICATION FOR INTERLOCUTORY REVIEW

    This case is before me under section 105 of the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 815. On April 11, 2002, the Respondent filed a motion to dismiss the case
because the civil penalty had not been proposed with “reasonable promptness.” The motion
was denied on May 3, 2002. The Respondent has now filed a Motion for Reconsideration or,
in the Alternative, Motion for Certification for Interlocutory Review. The Secretary
opposes both motions. For the reasons set forth below, the motions are denied.

                              Motion for Reconsideration

     The Respondent asserts that the ruling should be reconsidered because: (1) the

Secretary unnecessarily specially assesses penalties; (2) the ruling did not consider United
Metro Materials, 23 FMSHRC 1085 (September 2001) or Program Policy Letter 99-III-5
(August 16, 1999); and (3) the reasons given by the Secretary for the delay do not excuse its
failure to assess a penalty within a reasonable time. None of these reasons is compelling.

    Besides the bald assertion that the Secretary over-assesses cases as special

assessments, the Respondent presents no evidence to support this claim. The Secretary has
established guidelines for determining when a case should be specially assessed. 30 C.F.R.
§ 100.5. There is nothing to suggest that these guidelines are not being followed or a re
being abused.

    The policy letter and United Metro were considered in my ruling, they were just not

discussed. Whether the letter is a guideline or a deadline makes no difference in this case. It
does not provide any basis for relief to the Respondent. Similarly, the facts in United Metro
appear to be different than the ones in this case. Furthermore, unreviewed decisions of
judges, although they may be instructive, are not binding precedent. 29 C.F.R. § 2700.72.
Finally, the Respondent’s third assertion is only that, an assertion. It is not supported

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by evidence, case law or even argument. The Respondent cites Medicine Bow Coal Co.,
4 FMSHRC 882 (May 1982), for the proposition that “insufficient clerical help” may not
excuse delay. Here the Secretary has done more than claim insufficient clerical help. But
even if she had not, I find it significant that the legislative history states that “the Committee
does not expect that the failure to propose a penalty with promptness shall vitiate any
proposed penalty proceeding. S. Rep. No. 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)
(emphasis added).

   Accordingly, the Motion for Reconsideration is DENIED.

                       Certification for Interlocutory Review

    Commission Rule 76(a)(1), 29 C.F.R. § 2700.76(a)(1), provides, in pertinent part,

that: “Review cannot be granted unless: (i) The Judge has certified, upon his own motion or
the motion of a party, that his interlocutory ruling involves a controlling question of law and
that in his opinion immediate review will materially advance the final disposition of the
proceeding . . . .” The Respondent’s motion states neither what the controlling question of
law is nor how immediate review will materially advance the final disposition of the
proceeding. Nonetheless, I find that the interlocutory ruling does not involve a controlling
question of law.

   The Commission decided the question of law at issue in this case in Steel Branch

Mining, 18 FMSHRC 6, (January 1996). There it set out the facts to be considered in cases
where it has been alleged that the Secretary did not notify the operator of the civil penalty
within a reasonable time. Id. At 14. Those factors were applied in denying the Motion to
Dismiss. Therefore, this matter does not involve a controlling question of law. Buck Creek
Coal, Inc., 17 FMSHRC 1677, 1679 (October 1995).

    The Commission’s rule on interlocutory review requires that both criteria be present

for a ruling to be certified. Accordingly, since a controlling question of law is not involved,
the motion for certification is DENIED.

                                     Hearing Date

    Counsel for the Secretary is directed to initiate a telephone conference call with the

Respondent’s counsel and the judge, for the purpose of setting a hearing date, not later than
July 5, 2002.

                                           T. Todd Hodgdon
                                           Administrative Law Judge
                                           (703) 756-6213



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Distribution: (Certified Mail)

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nd Floor West, Arlington, VA 22209

Mark E. Heath, Esq., Heenan, Althen & Roles, LLP, BB & T Square, P.O. box 2549,
Charleston, WV 25329

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