White Buck Coal Company (ALJ decision, June 5, 2013)

Plain-English summary

The Secretary’s Conference and Litigation Representative asked the Judge to stay assignment of the docket for 180 days because of a high contest rate and limited staff. Judge Robert J. Lesnick denied the motion, citing the Acting Secretary’s assurance that the Department of Labor had resources to manage the backlog. He ordered that the docket be assigned in due course.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(d)
• Outcome: The requested 180-day stay was denied and the docket was ordered assigned.
• Key point: The order addressed case assignment and did not decide the underlying civil-penalty proceeding.

Full text (FMSHRC public release)

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

June 5,
2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION
(MSHA),
Petitioner

v.

WHITE BUCK COAL
COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

Docket
No. WEVA 2013-614
A.C. No. 46-09154-314388-01

Mine:
Pocahontas Mine

ORDER DENYING
STAY

Before:
Judge Lesnick

This case is before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815(d).

The Secretary of Labor's Conference and Litigation Representative ("CLR") has filed a motion requesting that the assignment of the captioned docket be stayed for 180 days due to a "high rate of contests coupled with MSHA's limited staff."  In the past, I have granted stay requests with similar justifications.  Recently, however, the Acting Secretary of Labor assured Congress that MSHA is able to keep caseloads at a manageable level, despite a significant reduction in the staffing of the MSHA Litigation Backlog Project (MLBP).[1]

While I certainly understand the CLR�s justification, as the Commission is also contending with the current backlog, I believe the CLR�s suggested remedy is misguided.  Given that the Acting Secretary of Labor has assured Congress that the Department of Labor has the resources to manage the backlog, the CLR must look within his own Agency for a remedy to his "high rate of contest" and "limited staff[ing]."

WHEREFORE, the motion to stay assignment is DENIED; and it is ORDERED that this docket be ASSIGNED in due course.

/s/ Robert J. Lesnick

Robert
J. Lesnick

Chief Administrative Law Judge

Distribution:

Ernie
Ross Jr., CLR

U.S.
Department of Labor, MSHA

100
Bluestone Rd.

Mt.
Hope, WV
25880-1000

R.
Henry Moore, Esq.

Jackson
Kelly PLLC

Three
Gateway Center, Suite 1500

401
Liberty Avenue

Pittsburgh,
PA  15222

/cd

[1]
On
March 15, 2013, Senators Rockefeller,
Miller, Manchin and Rahall sent a letter to Acting Secretary Harris expressing their concerns regarding the Department of Labor's decision to disproportionately reduce MSHA's staffing as a result of sequestration. The MLBP is being reduced from 74 FTEs to 44 FTEs.  On May 13, 2013, Acting Secretary Harris responded to the Senators, stating that the reduction was justified due to the Secretary's ability to maintain a manageable caseload following the success of MLBP's efforts to reduce the backlog since 2010, as well as MSHA's new strategy to reduce the number of citations contested.