Secretary of Labor v. Greenbrier Minerals, LLC

Plain-English summary

Greenbrier Minerals timely contested a citation, but an inexperienced MSHA employee inadvertently overlooked the contest and the Secretary missed the 45-day deadline for filing the penalty petition. MSHA discovered the oversight months later and promptly moved for permission to file out of time. Judge Thomas P. McCarthy held that the clerical error was a nonfrivolous explanation and adequate cause because the record did not show willful delay, intentional misconduct, or bad faith. Greenbrier argued that fading memories and unavailable evidence would prejudice its defense, but it identified no specific actual prejudice. The Judge granted the Secretary's motion, denied Greenbrier's motion to dismiss, and allowed the penalty case to proceed.

Decision snapshot

• Governing rule: 29 C.F.R. § 2700.28
• Outcome: The Secretary was permitted to file the penalty petition late, and Greenbrier's dismissal motion was denied.
• Key point: Clerical oversight can justify a late penalty petition when the Secretary shows adequate cause and the operator proves no specific actual prejudice.

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:
202-434-9900 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

GREENBRIER
MINERALS, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2015-1002

A.C.
No. 46-09217-499782

Mine:
Powellton No. 1 Mine

ORDER GRANTING
MOTION FOR LEAVE TO FILE OUT OF TIME

AND DENYING
MOTION TO DISMISS

Before:           
Judge McCarthy

This
case is before me upon a Motion for Leave to File Out of Time, wherein the
Secretary requests permission to file its Petition for the Assessment of Civil
Penalty under

section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d),
beyond the 45 day-limit established by Commission Procedural Rule 28. See 30.
C.F.R. § 2700.28.

This
matter involves a single citation, Citation No. 9064978, issued to Respondent
Greenbrier Minerals, Inc. on June 17, 2015. Respondent received the Mine Safety
and Health Administration’s (MSHA) Proposed Assessment on August 5, 2015, and
timely contested the citation by marking the “check for contest box” on MSHA
Form 1000-179 and returning the form to MSHA’s Civil Compliance Office on or
about August 21, 2015.

Pursuant
to Commission Procedural Rule 28, the Secretary was required to file a Petition
for the Assessment of Civil Penalty with the Commission by October 21, 2015. The
Secretary represents that at the time Respondent’s contest was received in MSHA’S
Coal District 12 office, the employee responsible for processing penalty cases
had been working in that capacity for less than a month, and Respondent’s
contest to Citation No. 9064978 was inadvertently overlooked. The Secretary
became aware of the oversight on May 5, 2016, and contacted counsel for
Respondent on May 11, 2016. The Secretary then filed his Motion for Leave to
File Out of Time and the Petition for Assessment of Civil Penalty on May 17,
2016. Respondent filed a Response in Opposition and a Motion to Dismiss on May
27, 2016.

The
Secretary argues that the “inadvertent oversight” of failing to process
Respondent’s contest is “understandable and excusable,” and points out that the
Commission has allowed late filing in cases where clerical errors have caused
delays in the filing of penalty petitions. Sec’y’s Mot. for Leave to File
Out of Time 2; see Jim Walter Res., 22 FMSHRC 930 (July 2000) (ALJ); Medicine
Bow Coal Co., 4 FMSHRC 882 (May 1982); Salt Lake Cty. Road Dep’t,
3 FMSHRC 1714 (July 1981).

Respondent points to Commission
Procedural Rule 9(b), which allows extensions of filing deadlines in exigent
circumstances, and contends that “the Secretary must meet the higher standard
of demonstrating exigent circumstances to justify” the granting of its motion.
Respondent argues that the replacement of the employee responsible for
processing District 12’s proposed penalty petitions is not an exigent
circumstance. Resp’t’s Mot. to Dismiss 3. Respondent also argues that the
Secretary’s nine-month delay in filing its Petition for the Assessment of Civil
Penalty prejudices its ability to defend itself. Respondent asserts generally
that “as a substantial amount of time passes, as is the case here, memories
fade, witnesses become unavailable, and evidence is lost.” Id. at 4.

Section 105(a) of the Mine Act states
that the Secretary is to provide the operator notice of a proposed penalty
“within a reasonable time” after the issuance of a citation or order. 30 U.S.C.
§ 815(a). Under section 105(d), the Secretary “shall immediately advise the
Commission . . . and the Commission shall provide an opportunity for
hearing” after an operator files a notice of contest for a proposed penalty. 30
U.S.C. § 815(d). Commission Procedural Rule 28 requires that the Secretary file
a petition for the assessment of penalty with the Commission within 45 days of
receiving a timely contest of a proposed penalty assessment. 30 C.F.R. §
2700.28. The Commission has explained that the “enforcement of the time limits
is a secondary consideration to the primary purpose of section 105(d), i.e. ensuring
prompt enforcement of the Act’s penalty scheme.” The 45-day time limit, then,
should not be viewed as a “procedural straight jacket.” Long Branch, 34
FMSHRC 1984, 1990 (Aug. 2012).

The Commission’s decision in Salt
Lake established two competing interests that must be weighed when
determining whether to dismiss petitions for the assessment of penalties on the
basis of untimely filing. First, “if the Secretary does seek permission to file
late, he must predicate his request upon adequate cause.” Salt Lake, 3
FMSHRC at 1716. Adequate cause to support late filing “may be found to exist
where the Secretary provides a non-frivolous explanation for the delay,” and
the excuse “may not be facially implausible, and should be supported by
evidence sufficient to establish that the delay did not result from “mere
caprice” or through willful delay, intentional misconduct, or bad faith.” Long
Branch, 34 FMSHRC at 1991.[1]

Second, even where the Secretary shows
adequate cause, “an operator may object to a late penalty proposal on the
grounds of prejudice.” Salt Lake, 3 FMSHRC at 1716. “Mere
allegations of potential prejudice or inherent prejudice should be rejected.”  Long
Branch, 34 FMSHRC at 1991; see also Nealy v. Transportation
Maritima Mexicana, S.A., 662 F.2d 1275 (9th Cir. 1980) (“Where a
plaintiff has come forth with an excuse for his delay that is anything but
frivolous, the burden of production shifts to the defendant to show at least
some actual prejudice.”). The Commission has recognized that this analytic
position is consistent with “allowing such an objection comports with the basic
principle of administrative law that substantive agency proceedings, and
effectuation of a statute’s purpose, are not to be overturned because of a
procedural error, absent a showing of prejudice.” Salt Lake, 3 FMSHRC at
1716. Thus, the Salt Lake test as clarified in Long Branch “rests
firmly on the principle that consideration of procedural fairness to operators
must be balanced against the severe impact of dismissal of the penalty proposes
upon the substantive scheme of the statute, and, hence, the public interest
itself.” Long Branch, 34 FMSHRC at 1991 (citing Salt Lake, 3
FMSHRC at 1716).

Applying the Salt Lake standard
as clarified in Long Branch, I find that the Secretary has shown
adequate cause to support the late filing of the petition for assessment of
civil penalty. The Commission has, in the past, accepted clerical errors as
adequate cause to permit late filing. In Rhone-Poulenc of Wyoming Co., 15
FMSHRC 2089 (Oct. 1993), the Commission permitted late filing after a three-month
delay due to a transfer of files from the MSHA Arlington to the Denver
Solicitor’s office. Similarly, the Commission allowed a two-week delay in Medicine
Bow Coal due to “insufficient clerical help,” 4 FMSHRC at 885, and at least
one Commission judge has allowed late filing when, as in this case, penalty
petitions have been inadvertently overlooked by MSHA clerical staff. See Jim
Walter Res. Inc., 22 FMSHRC at 932.

Under the second part of the Salt
Lake test, as clarified in Long Branch, dismissal may still be
required if the operator makes a showing of actual prejudice. Here, however, Respondent
has made only general allegations of potential and inherent prejudice, and has
not made any real or substantial showing of specific instances of actual
prejudice that will result should the Secretary be permitted to proceed with filing
its Petition for Assessment of Civil Penalty. See Long Branch, 34 FMSHRC
at 1993; see,e.g., Webster Cty. Coal, LLC, 34 FMSHRC 1946, 1952 (Aug. 2012) (upholding
ALJ’s determination that prejudice must be pleaded with specificity).

WHEREFORE, the
Secretary’s Motion for Leave to File Out of Time is GRANTED, and Respondent’s
Motion to Dismiss is DENIED.

/s/ Thomas P.
McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Lee
Awbrey, Esq. U.S. Department of Labor, Office of the Regional Solicitor, Suite
630E, The Curtis Center, 150 S. Independent Mall West, Philadelphia, PA 19106

Lorna
Waddell, Esq., Dinsmore & Shohl LLP, 215 Don
Knotts Blvd., Suite 310, Morgantown, WV 26501

/ccc

[1] While I find
that, in this matter, the Secretary has provided a non-frivolous explanation
for the delay and provided sufficient evidence to show that the delay did not
result from willfulness, intentional misconduct, or bad faith, I note the
difficultly in determining what delay may result from “mere caprice.” Merriam-Webster
defines “caprice” as “a sudden, impulsive and seemingly unmotivated notion or
action,” or “a sudden usually unpredictable condition, change, or series of
changes.” This standard seems especially difficult to apply given that “the
Commission presumes that the Secretary’s agents generally act in good faith to
uphold the timely enforcement of penalties assessed under the Act.” Long
Branch, 34 FMSHRC 1991, n.11.