Michael Cline

Plain-English summary

MSHA proposed a personal penalty against Michael Cline under section 110(c) of the Mine Act, but the assessment was sent to his former office after he transferred from New York to Texas. Cline first learned of it through a forwarded delinquency letter, and his attorney obtained the assessment from MSHA on September 11, 2008. Counsel notified MSHA seven days later that Cline wished to contest the penalty. The Commission held that Cline had not received the required notice until he obtained the assessment and that his contest was therefore timely. It concluded that the assessment was not a final order and remanded the case for further proceedings.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.25 to 2700.28, 30 U.S.C. § 815(a), and 30 U.S.C. § 820(c)
• Outcome: The assessment was held not final, and the individual-liability case was remanded.
• Key point: The contest period began when Cline actually received the proposed assessment, not when MSHA sent it to his former office.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 18, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MICHAEL CLINE

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Docket No. YORK 2009-25-M
A.C. No. 30-00025-151256 A

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On November 6, 2008, the Commission received from
Michael Cline (“Cline”) a motion by counsel seeking to reopen a penalty assessment against
Cline under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that may have become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Under the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.

In his motion, Cline states that in January 2008, he was informed, through counsel, that
the Department of Labor’s Mine Safety and Health Administration (“MSHA”) intended to assess
a civil penalty against him as a result of an alleged “knowing” violation of the same standard
referenced in the citation issued to his employer, Orica USA, Inc. (“Orica”), on June 4, 2007.
Cline also states that, in January 2008, he was transferred from Orica’s New York office to one
of its offices in Texas. On May 20, 2008, MSHA apparently issued a proposed penalty
assessment to Cline, alleging that he was personally liable under section 110(c) of the Mine Act
for a citation issued to Orica. See 30 U.S.C. § 820(c). In his motion, Cline asserts that, on
September 5, 2008, he received a delinquency letter from MSHA that had been forwarded to him
in Texas from Orica’s New York office. According to Cline, that letter was the first indication to
him that MSHA had proposed a civil penalty against him. The motion further states that neither
Cline nor the attorney representing him had ever received the proposed penalty assessment prior
to that time. On September 11, 2008, MSHA faxed Cline’s counsel a copy of the proposed
assessment. On September 18, Cline’s counsel notified MSHA by letter that Cline wished to
contest the penalty. The Secretary states that she does not oppose Cline’s request to reopen the
penalty assessment.

Here, Cline never received notification of the proposed penalty assessment as required
under Commission Rule 25.

Under the circumstances of this case, we conclude that Cline was
not notified of the penalty assessment, within the meaning of the Commission’s Procedural
Rules, until at least September 11, 2008, when he received a copy of the assessment from
MSHA. Cline, through his attorney, notified MSHA of his intent to contest the proposed penalty
assessment against him by letter dated September 18, 2008. We conclude from this that Cline
timely notified the Secretary that he wished to contest the proposed penalty, once he had actual
notice of the proposed assessment. See Stech, employed by Eighty-Four Mining Co., 27
FMSHRC 891, 892 (Dec. 2005).

Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution:

Timothy M. Biddle, Esq.

Crowell & Morning LLP

1001 Pennsylvania N. W.

Washington, D.C. 2004-2595

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA,

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Suzanne L. Demitrio, Esq.

Office of the Solicitor

U.S. Department of Labor

201 Varick Street, Room 983

New York, NY 10014

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021