Secretary of Labor (MSHA) v. Lawrence Ready Mix Concrete Corporation (ALJ decision, February 1, 1984)

Plain-English summary

Lawrence Ready Mix Concrete Corporation contested a proposed mine safety penalty in November 1981. The Secretary did not file a penalty petition until August 1983, after Judge Paul Merlin ordered an explanation for the delay. The Secretary said a timely proposal had been prepared but documents went into the wrong file. Judge Merlin found that this did not justify filing more than a year and a half after the contest. He dismissed the case without reaching the underlying violation or assessing a penalty.

Decision snapshot

• Cited standard: The released order does not identify the underlying safety standard.
• Outcome: Civil penalty proceeding dismissed for the Secretary's unjustified late filing; no penalty assessed.
• Key point: Misfiling documents did not establish good cause for the lengthy delay in filing the penalty petition.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. LAWRENCE CONCRETE
DDATE:
19840201
TTEXT:
~246

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. YORK 82-14-M
PETITIONER
A.C. No. 19-00283-05007
v.

LAWRENCE READY MIX CONCRETE
Assonet Sand & Gravel Co.
CORPORATION,
RESPONDENT

ORDER OF DISMISSAL

Before: Judge Merlin

In this case, the notice of contest card was signed by the operator and mailed to MSHA on November 13, 1981. On July 26, 1983, the Secretary of Labor was ordered to show cause why the case should not be dismissed for failure to file a proposal for a penalty. On August 22, 1983, the Secretary of Labor filed a response to the order to show cause and a petition for assessment of civil penalty.

A civil penalty petition should be filed within 45 days of receipt of a timely notice of contest of a penalty. 29 C.F.R. | 2700.27(a). The Commission has held that the late filing of a petition will be accepted where the Secretary demonstrates adequate cause and where there is no showing of prejudice to the operator. An extraordinarily high caseload and lack of clerical personnel were held "good cause" for filing two months late. Salt Lake County Road Department, 3 FMSHRC 1714 (July 28, 1981).

In Medicine Bow Coal Company, 5 FMSHRC 882 (1982), the Commission held inadequate clerical help constituted good cause for a two week delay, but pointed out that the late filings had been before its warnings in Salt Lake. In this case the Solicitor's motion for leave to file late petition sets forth:

• • • Petitioner did prepare a timely Proposal on December 16, 1981. However, for reasons which were caused by the staff attorney's failure to act and because of insertion of enclosed documents in ~247 the wrong file, we submit that the failure to file should be construed as excusable neglect. Petitioner did not simply forget to prepare a Proposal. One was prepared, but inadvertently not filed.

The Secretary took over a year and a half to file a petition which should have been filed within 45 days. The only excuse in this case is that the Solicitor put the documents in the wrong file. This is not good cause for such an extraordinarily long delay. Indeed, the petition was filed only in response to my show cause order. The operator should not have to answer such a stale claim.

In light of the foregoing, this case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge