Secretary of Labor v. Consol Mining Company, LLC

Plain-English summary

After the parties settled all but one citation, the Secretary sought to amend the remaining rib-control citation from moderate to high negligence. The citation described four large broken or loose ribs in areas where miners regularly worked and traveled, and the Secretary relied on seven recent citations under the same standard, including four in the preceding month, as heightened notice. Consol argued that the inspector knew that history when selecting moderate negligence and that amendment before discovery was premature and prejudicial. The Judge found no undue delay, bad faith, futility, or actual prejudice because the amendment came months before hearing, did not change the underlying facts, and merely gave notice of the higher allegation the Secretary would still have to prove. The amendment was granted.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.202(a)
• Outcome: The Secretary was permitted to amend the alleged negligence from moderate to high.
• Key point: Early amendment of the negligence allegation caused no prejudice where the citation's facts stayed unchanged and the operator had months to prepare.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004

__ORDER GRANTING THE
SECRETARY OF LABOR’S __

MOTION TO AMEND
PETITION

This case is before me upon the filing of the Secretary of Labor’s Petition for the Assessment of Civil Penalty under section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. On March 15, 2023, the parties notified my Law Clerk that they settled all but one citation in this docket, leaving only Citation No. 9568130 at issue.

On March 30, 2023, the Secretary of
Labor (“Secretary”) filed a Motion to Amend Petition. In the motion, the
Secretary requests that I grant her request to modify the negligence for [Citation No. 9568130]. (Mot. at 1.) The citation’s
negligence was originally designated as “moderate,” and the proposed penalty
assessment is $2,194.00. In Citation No. 9568130, Inspector Nicholas Christian
wrote the following verbatim—

The roof and ribs where miners are required to work and travel are not being maintained on the A-Mains section. When observed multiple ribs were found to be broken loose from the mine roof and along both sides. These were found at the following locations:

1) #5 Entry 2 Crosscuts inby Feeder, measured 60” long x 8” wide and 12” thick

2) #4 Entry 2 Crosscuts inby Feeder, measured 60” long x 30” wide and 18” thick

3) #5 Entry 2 Crosscuts inby Feeder, measured 24’ long x 18” wide and 24” thick

4) #4 Entry Feeder Line, measured 8’ long x 29” wide and 14” thick

All of these ribs were in areas where miners are required to work and travel throughout their work shift, therefore exposing them to hazards related to falling rock and materials.

Standard 75.202(a) was cited 7 times in two years at mine 4609569 (7 to the operator, 0 to a contractor).

(Mot. at 1–2.)

On April 7, 2023, Respondent filed a Response opposing the Secretary’s Motion to Amend Petition.

I. PARTIES’
ARGUMENTS

In the motion, the Secretary seeks
to modify the negligence finding from “moderate” to “high.” (Mot. at 2.) In
support, the Secretary points to the citation which alleges “obvious and
extensive cracked and broken ribs in four areas where miners frequently travel
and work.” (Mot. at 2.) The Secretary also notes that CONSOL has been cited
seven times in the previous two years under this same standard, including four
citations in the month prior to the issuance of the current citation, which
should have put “the operator on heightened notice to be aware of and correct
hazardous rib conditions.” (Mot. at 2.) The Secretary asserts that she “does
not seek in this motion a determination of an appropriate penalty amount.” (Mot.
at 3–4.) Rather, via the motion, the Secretary seeks to give CONSOL adequate
notice of the Secretary’s intent to seek a higher civil penalty than initially
proposed, so CONSOL will have the “full opportunity to develop its case and
prepare for hearing.” [( Id.)]

CONSOL opposes the Secretary’s
motion. (Mot. at 4; Resp. at 1.) CONSOL counters that Inspector Christian, who
issued the citation in this case, also issued three of the recent citations
relied upon by the Secretary, and thus, CONSOL asserts, Inspector Christian was
aware of the previous citations when he originally determined the level of negligence.
(Resp. at 2–3.) CONSOL notes that counsel for the Secretary has not yet
answered written discovery nor taken depositions, and thus CONSOL believes the
Secretary is filing this motion without all necessary information. (Resp. at
2.) CONSOL argues, “it would be unnecessary, inappropriate, and premature to
overrule the negligence designation of the Inspector at this early state.” Id.
Further, CONSOL states that no evidence suggests the Secretary interviewed the
Inspector or that the Inspector altered his opinion as to the level of
negligence he originally designated. (Resp. at 3.) CONSOL posits that, because
the court analyzes negligence de novo after hearing the evidence and may
modify the Secretary’s citation, the Secretary’s motion is “unnecessary.” Id.

Lastly, CONSOL argues that the
Secretary’s proposed amendment “prejudices
the Respondent, since it represents a willingness on the part of the Secretary to
overrule its Inspector, early in the process, without completing written discovery, depositions or
considering the mitigating factors to be identified by the Respondent.” (Resp.
at 4.) CONSOL attaches the Secretary’s Interrogatories and Requests for
Production of Documents and First Request for Admissions to Respondent to its response.
(Resp. at 6–10.) CONSOL
hypothesizes that the Secretary’s motion is “[merely
being utilized to exert inappropriate pressure on Respondent for exercising
rights of discovery and a hearing].” (Resp. at 4.)

II. PRINCIPLES OF
LAW AND ANALYSIS

The
Commission has no specific rule regarding the amendment of pleadings, yet Commission
Procedural Rule 1(b) states “[o]n any procedural question not regulated by
the Act, these Procedural Rules, or the Administrative Procedure Act . . . the
Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure.” 29 C.F.R § 2700.1(b)#co_pp_a83b000018c76). Federal Rule of Civil Procedure 15(a)(2) states that after more than 21 days after filing initial
pleadings, a party may amend its pleading “only with the opposing party’s written
consent, or the court’s leave,” but that “[t]he court should freely give
leave when justice so requires.” Fed. R. Civ. P.
15(a)(2).

The
Supreme Court has interpreted Rule 15 liberally to allow amendments to
pleadings unless one of the following factors is present that justifies denial—(a)
undue delay; (b) bad faith by movant; (c) repeated failure to cure
deficiencies by previous amendments; (d) [undue
prejudice to the opposing party]; or (e) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962)#co_pp_sp_780_182).
The Commission takes a similar view when it comes
to amending petitions, especially when the amendment does not prejudice the non-moving
party in preparing its defenses. See Cyprus Empire Corp., 12 FMSHRC
911, 914–16 (May 1990) (finding no
abuse of discretion by ALJ who permitted Secretary’s prehearing amendment to
the citation where the non-moving party was not prejudiced by the amendment); see
also Wyo. Fuel Co., 14
FMSHRC 1282, 1290 (Aug. 1992) (“amendments are to be liberally granted unless
the moving party has been guilty of bad faith, has acted for the purpose of
delay, or where the trial of the issue will be unduly delayed”); CDK
Contracting Co., 23
FMSHRC 783, 784 (July 2001) (ALJ) (“It
is well settled that administrative pleadings are liberally construed and
easily amended, as long as adequate notice is provided and there is no
prejudice to the opposing party” in granting Secretary’s motion to amend to
allege violations of two alternative safety standards).

First, in applying the Supreme Court’s test for Rule 15(a), I note that the Secretary’s amendment causes no undue delay, because no hearing date had yet been set at the time the motion was filed and discovery was not yet complete. Second, CONSOL posits the Secretary filed its motion in bad faith “to exert inappropriate pressure on Respondent for exercising rights of discovery and a hearing.” (Resp. at 4.) However, I find no indication of bad faith because an objective reading of the alleged violation in Citation No. 9568130 could justify a high negligence determination. Third, given this is the Secretary’s first proposed amendment in this case, the repeated failure to cure deficiencies by previous amendments is inapplicable. Fourth, the amendment is not futile because the Secretary could reasonably prove high negligence at trial.

Fifth, I must determine if granting
the motion to amend unduly prejudices Respondent. The
Commission has held that “[m]ere allegations of potential prejudice or inherent
prejudice should be rejected,” and the non-moving party must demonstrate more
than a danger of prejudice to show actual prejudice. Long Branch Energy,
34 FMSHRC 1984, 1992–93 (Aug. 2012). While CONSOL argues the proposed
amendment would prejudice CONSOL since it is still “early in the process,”
CONSOL’s argument is exactly contrary to Commission case law. (Resp. at 4.) Here, the Secretary filed her motion to amend on March 30,
2023, before the hearing was scheduled. Thereafter, on April 14, 2023, I
scheduled this case in consultation with the parties to be heard—more than four
months later—on August 23, 2023. In determining undue prejudice, Commission
Administrative Law Judges have found no prejudice for amendments made with significantly
less time before hearing, including amendments made at hearing. See Higman
Sand & Gravel, Inc., 18 FMSHRC 951, 958–59 (June 1996) (ALJ) (granting
Secretary’s amendment and finding no prejudice where amendment was made for the
first time at the hearing); Bob Bak Constr., 28 FMSHRC 817, 822–23 (Sept. 2006) (ALJ) (granting
Secretary’s motion to amend pleading to add an alternative standard and finding
no prejudice where amendment was first made at hearing). Early notice here
weighs in favor of finding the amendment nonprejudicial.

Respondent
also argues “it is premature to overrule the negligence designation of
the Inspector.” (Resp. at 2.) Yet this argument is inapposite. The Secretary is
allowed to conform her pleadings to the evidence. See Cyprus Empire Corp., 12 FMSHRC at 916 (finding that changes in the nature of
the petitioner’s claims or legal theories are permissible purposes for
amendment). Further, the parties have just
begun to actively engage in discovery. (Resp. at 2.) The Secretary’s amendment—a change in the degree of
negligence alleged in the pleadings— does not change the underlying facts and would
not appear to require additional discovery. See New NGC, Inc., 35
FMSHRC 3225 (Sept. 2013) (ALJ) (finding no prejudice in case not yet scheduled
for hearing and granting motion to amend to allege violations of two
alternative safety standards where the Secretary relied on facts already stated
in the citation). Although the amendment gives notice of the intent to argue
high negligence, regardless of what the Secretary pleads she must still educe
evidence at hearing to prove the allegation.

Under Federal Rule of Civil Procedure 15(a) and Commission case law, Commission Judges may liberally grant amendments to petitions when justice requires. Given the lack of prejudice to Respondent, as well as the lengthy notice provided in advance of the hearing date, I conclude that allowing the Secretary to amend the pleading is appropriate.

III. ORDER

WHEREFORE, it is hereby ORDERED
that the Secretary’s Motion to Amend Petition is ** GRANTED**.

/s/
Alan G. Paez

Distribution: (Via Electronic Mail Only)

J. Matthew McCracken, Esq., U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and Health, 201 12th Street South, Suite 401, Arlington, VA 22202-5450

([email protected])

James P. McHugh, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329-2548

([email protected])

/gw