Ezel / Agency Decisions / weva-2007-497-r-alj
FMSHRC ALJ decision Docket WEVA 2007-497-R, WEVA 2007-498-R, WEVA 2007-499-R, WEVA 2007-500-R Decided November 2, 2007 Procedural Judge Jerold Feldman

Alex Energy, Inc.

Alex Energy, Inc. (FMSHRC WEVA 2007-497-R, et al.): Late answer accepted and contests stayed

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This order from 2007 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 2007
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Interlocutory ALJ order, not Commission precedent
This order accepted a late answer and stayed four contest proceedings while related penalty litigation was pending. It did not dispose of the cases or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). It is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Secretary filed an answer to four Alex Energy contest cases 38 days after the Commission rule's 20-day period, citing internal mail-routing delays. Alex Energy opposed the late filing but did not identify any prejudice caused by the delay. Judge Jerold Feldman held that the filing period was a processing guideline rather than a jurisdictional bar and granted leave to file the answer. He also stayed the contests until the related civil penalty matter was assigned.

Decision snapshot

  • Governing provision: 29 C.F.R. § 2700.20(f)
  • Outcome: The Secretary's late answer was accepted and all four contests were stayed pending the related penalty case.
  • Key point: A late agency answer does not remove Mine Act jurisdiction when the operator cannot show identifiable prejudice from the delay.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

November 2, 2007

ALEX ENERGY, INC.,                                 :          CONTEST PROCEEDINGS

Contestant                               :

:          Docket No. WEVA 2007-497-R

:              Order No. 7267047; 05/02/2007

: 

:          Docket No. WEVA 2007-498-R

v.                                             :          Order No. 7267048; 05/02/2007

:

:          Docket No. WEVA 2007-499-R

:          Order No. 7267049; 05/02/2007

SECRETARY OF LABOR,                           :

MINE SAFETY AND HEALTH                   :          Docket No. WEVA 2007-500-R

ADMINISTRATION, (MSHA)                     :          Order No. 7267051; 05/03/2007

Respondent                             : 

:          Superior Surface Mine

ORDER GRANTING SECRETARY’S LEAVE TO FILE ANSWER

AND

STAY ORDER

The Contestant filed its Notices of Contest in the above captioned matters on
May 31, 2007. Commission Rule 20(f), 29 C.F.R. 2700.20(f), specifies that the Secretary shall
file an answer to a notice of contest within twenty days. The Secretary filed an Answer and
Motion to Stay on August 2, 2007. The Secretary’s answer was filed thirty-eight days beyond the
twenty day filing period contained in the Commission’s Rules.

Concurrently filed with its answer, the Secretary filed a Motion for Leave to File

her untimely answer as well as a Motion to Stay these contests pending the docketing of the
related civil penalty matter. The Secretary claims the untimely filing occurred as a result of
routing delays in the Secretary’s mail delivery system.

On August 14, 2007, the Contestant filed an opposition to the Secretary’s Motion for
Leave to File her untimely answer. The Contestant has not shown any cognizable prejudice by
the Secretary’s delay that is a prerequisite to any relief that the contestant is seeking. Sec’y of
Labor on behalf of Hale v. 4-A Coal Co., 6 FMSHRC 905, 908-09; (June 1984); Sec’y of Labor
on behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905 (June 1986); Sec’y of Labor on behalf of
Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov.1994); Sec’y of Labor on
behalf of Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315, 1325 (Aug. 1996).

Processing guidelines generally are intended to “spur the Secretary to action,” rather than
to confer rights on litigants that limit the scope of the Secretary’s authority. Sec’y of Labor v.
Twentymile Coal Company, 411 F.3d 256, 261 (D.C.Cir. 2005). Moreover, filing periods under
the Federal Mine Safety and Health Act of 1977 are not considered jurisdictional. See, e.g.,
Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d mem., 750 F2d 1093
(D.C. Cir. 1984).

In view of the above, in the absence of a showing of identifiable prejudice, the late filing
of the Secretary’s answer does not exempt the contested cited violative conditions from Mine Act
jurisdiction. Accordingly, the Secretary’s Motion for Leave to File her untimely answer   
IS GRANTED. In the interest of judicial efficiency, the Secretary’s Motion to Stay
the captioned contests pending the assignment of the related civil penalty matter
IS ALSO GRANTED. 

Jerold Feldman

Administrative Law Judge

Distribution:

Ronald Gurka, U.S. Department of Labor, 1100 Wilson Blvd, 22nd Floor West,
Arlington, VA 22209

Ramonda C. Lyons, Dinsmore & Shohl, LLP, 900 Lee Street, Suite 600, P.O. Box 11887,
Charleston, WV 25339

/rps

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