Secretary of Labor v. Elk Run Coal Company (ALJ decision, March 21, 2013)

Plain-English summary

The Secretary asked to postpone the hearing in three of four consolidated penalty dockets because counsel expected office-closing work connected with the shutdown of MSHA's Arlington backlog project and anticipated difficulty completing post-hearing briefs. Judge Thomas P. McCarthy denied the request. The parties had agreed to the April 8 hearing two months earlier, the notice already allowed the hearing to continue beyond two days, and the agency's decision to close the office was a self-imposed scheduling problem that did not justify more delay. He also noted that oral argument could replace briefing for some violations.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(d)
• Outcome: The motion for a continuance was denied, and the April 8, 2013 hearing remained scheduled.
• Key point: An agency's internal staffing and office-closure decisions do not by themselves justify delaying a hearing date the parties previously accepted.

Full text (FMSHRC public release)

FO#5D.WPD

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

March 21, 2013

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA), 

Petitioner

v.

ELK RUN COAL COMPANY,

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. WEVA 2012-1394

A.C. No. 46-09163-292401

Docket No. WEVA 2012-1565

A.C. No. 46-09163-295314

Docket No. WEVA 2012-1713

A.C. No. 46-09163-298097

Docket No. WEVA 2012-1809

A.C. No. 46-09163-300802

Mine: Roundbottom Powellton Deep

ORDER DENYING SECRETARY’S MOTION FOR CONTINUANCE

These cases are before me upon four Petitions for Assessment of Civil Penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). On February 6, 2013, I issued a Notice of Hearing and Order to File Prehearing Report which set a hearing in the above-captioned matters for April 8, 2013 and continuing days thereafter, in Charleston, West Virginia.

On March 20, 2013, the Secretary filed a motion to continue the hearing of Docket Nos. WEVA 2012-1565, WEVA 2012-1713, and WEVA 2012-1809. The Secretary did not move to continue the hearing of Docket No. WEVA 2012-1394. Respondent appears to oppose the motion.

In support of the motion, the Secretary anticipates that the hearing will last more than two days given the number of citations involved. Further, the Secretary states that counsel will be involved in “office-closing related activities” during May 2013 in anticipation of the closing of the Arlington, Virginia MSHA Litigation Backlog Project on June 1, 2013. Given counsel’s involvement in such activities, the Secretary asserts that there will be insufficient time to complete briefing of the cases after hearing. The Secretary also represents that the parties have engaged in settlement discussions, but have had only limited success narrowing the issues for hearing.

Upon consideration of the Secretary’s motion, I do not find that a continuance is warranted. The parties agreed to the hearing date during a conference call with the undersigned on February 6, 2013. This trial date provided the parties with approximately two months to continue settlement negotiations and conduct discovery in advance of the hearing. Insofar as the Secretary’s decision to close the Arlington Backlog Office makes post-hearing briefing difficult, such an inconvenience is a self-imposed handicap. In exercising discretion to allocate funds in light of sequestration, the Secretary has decided that it could make cuts to personnel tasked with litigating under the Mine Act, even as the backlog continues. Without discounting or minimizing the personal toll such cuts have on the people tasked with enforcing the Mine Act, the downsizing of the Secretary’s efforts to address the backlog does not justify the continuance of the April 8 hearing.

In addition, I do not find the Secretary’s concerns regarding the length of the hearing to be persuasive. Although the parties estimated during the conference call that the hearing would likely last two days, the Notice of Hearing clearly states that the hearing will be held on “Monday, April 8, 2013, and continuing dates after until completed.” (emphasis added). This matter has been on the trial calendar for six weeks and continuance and subsequent reassignment will compound delay and inefficiency. Finally, I note that oral argument may be a viable alternative to post-hearing briefs with regard to certain violations.

In light of the foregoing, the Secretary’s Motion for Continuance is DENIED. The hearing set for April 8, 2013 and subsequent dates thereafter until completed will proceed pursuant to the Notice of Hearing.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution: 

Michelle K. Vaughan, Esq., U.S. Dept. Of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209

Caroline Y. Hong, Esq., U.S. Dept. Of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209

Eric L. Silkwood, Esq., Hardy Pence, PLLC, 500 Lee Street East, Ste. 701, Charleston, WV 25301

/tjr