ORAL ARGUMENT SCHEDULED FOR MAY 16,
2005
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________________________________________________
Docket No. 04-1292 (Consolidated with
No. 04-1312)
________________________________________________________________
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
Petitioner,
v.
TWENTYMILE COAL COMPANY
and
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
Respondents.
________________________________________________________________
ON PETITION FOR REVIEW OF A DECISION
OF THE FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
________________________________________________________________
BRIEF FOR THE SECRETARY OF
LABOR
HOWARD M. RADZELY
Solicitor of Labor
|
JERALD S. FEINGOLD
Attorney
|
EDWARD P. CLAIR
Associate Solicitor
W.
CHRISTIAN SCHUMANN
Counsel, Appellate
Litigation
|
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Suite 2200
Arlington, Virginia 22209-2296
Telephone: (202) 693-9335
|
CERTIFICATE
AS TO PARTIES, RULINGS, AND RELATED CASES
(A) Parties and Amici. The
parties who appeared before the Federal Mine Safety and Health Review
Commission ("the Commission") are the Secretary of Labor and Twentymile
Coal Company. The parties in this Court are the Secretary of Labor,
Twentymile Coal Company, and the Commission. No amici appeared
before the Commission, and there are no amici in this Court.
(B) Rulings Under Review. The
Secretary of Labor seeks review of the decision of the Commission issued
on August 12, 2004, in Twentymile Coal Co., FMSHRC Docket Nos. WEST
2000-480-R and WEST 2002-131, and reported at 26 FMSHRC 666
(2004).
(C) Related Cases. This
case was not previously before this Court or any other court. Other
than the two dockets, Nos. 04-1292 and 04-1312, consolidated into one case
by order of the Court dated September 8, 2004, counsel for the Secretary
are unaware of any other related cases pending in this Court or any other
court.
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TABLE OF CONTENTS
CERTIFICATE
AS TO PARTIES, RULINGS, AND RELATED CASES
TABLE
OF CONTENTS
TABLE
OF AUTHORITIES
GLOSSARY
OF ABBREVIATIONS AND ACRONYMS
STATEMENT
REGARDING JURISDICTION
STATEMENT
OF THE ISSUE PRESENTED
PERTINENT
STATUTES AND REGULATIONS
STATEMENT
OF THE CASE
A. Nature of
the Case
B. Course of
Proceedings and Disposition Below
STATEMENT
OF FACTS
SUMMARY
OF ARGUMENT
ARGUMENT
IN
REFUSING TO ASSESS A PENALTY FOR TWENTYMILE'S VIOLATION OF A STANDARD, THE
COMMISSION DISREGARDED ESTABLISHED PRINCIPLES OF ADMINISTRATIVE LAW AND
THE PENALTY PROVISIONS OF THE MINE ACT
A. Applicable Principles and Standard of Review
B. The Role of Penalties in Enforcement of the Mine Act
C. In Refusing to Assess a Penalty
for Twentymile's Violation of a Standard, the Commission Disregarded the
Principles Set Forth by the Supreme Court in
Brock v. Pierce County
D. In Refusing to Consider the Fact
that Twentymile Was Not Prejudiced by the Amount of Time It Took the
Secretary to Propose a Penalty, the Commission Disregarded the Principles
Set Forth by the Supreme Court in Pioneer Investment Services Co.
v. Brunswick Associates Ltd. Partnership
E. In Calculating the Time It Took
the Secretary to Propose a Penalty as Starting When the Order Was Issued
Instead of When the Accident Investigation Was Terminated, the Commission
Disregarded the Terms of Section 105(a) of the Mine Act
F. In Substituting Its View of the
Facts for the Judge's View, the Commission Exceeded Its Authority Under
Section 113(d)(2)(A)(ii) of the Mine Act
CONCLUSION
CERTIFICATE
OF COMPLIANCE
CERTIFICATE
OF SERVICE
ADDENDUM
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TABLE OF AUTHORITIES
* Authorities upon which we chiefly rely are marked
with asterisks.
CASES
Allied Products Co. v. FMSHRC, 666 F.2d
890 (5th Cir. 1982)
Ambrosia Coal & Construction Co., 18 FMSHRC
1552 (1996)
*Asarco, Inc.-Northwestern Mining Dept. v.
FMSHRC, 868 F.2d 1195 (10th Cir. 1989)
Bailey v. United States, 516 U.S. 137
(1995)
Barnhart v. Peabody Coal Co., 537 U.S.
149 (2003)
Bell
Atlantic Telephone Companies v. FCC, 131 F.3d 1044 (D.C. Cir.
1997)
Brock v. Cathedral Bluffs Shale Oil
Co., 796 F.2d 533 (D.C. Cir. 1986)
*Brock v. Pierce County, 476 U.S. 253 (1986)
Bro.
of Railway Carmen Div. Transportation Communications Int'l Union v.
Pena, 64 F.3d 702 (D.C. Cir. 1995)
Bullcreek v. NRC, 359 F.3d 536 (D.C.
Cir. 2004)
*Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837
(1984)
*Coal
Employment Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989)
*Donovan on behalf of Chacon v. Phelps Dodge
Corp., 709 F.2d 86 (D.C. Cir. 1983)
Donovan v. Royal Logging Co., 645 F.2d
822 (9th Cir. 1981)
Ethyl
Corp. v. EPA, 51 F.3d 1053 (D.C. Cir. 1995)
George Harms Construction Co. v. Secretary of
Labor, 371 F.3d 156 (3d Cir. 2004)
*Gottlieb v. Pena, 41 F.3d 730 (D.C. Cir. 1994)
*Halverson v. Slater, 129 F.3d 180 (D.C. Cir.
1997)
Havens Steel Co. v. OSHRC, 738 F.2d 397
(10th Cir. 1984)
*Heckler v. Chaney, 470 U.S. 821 (1985)
Lairsey v. Advance Abrasives Co., 542
F.2d 928 (5th Cir. 1976)
Natural Resources Defense Council, Inc.
v.Browner, 57 F.3d 1122 (D.C. Cir.
1995)
North
Carolina Utilities Comm'n v. FERC, 653 F.2d 655 (D.C. Cir. 1981
Old
Ben Coal Co., 7 FMSHRC 205 (1985)
Old
Dominion Power Co., 6 FMSHRC 1886 (1984) aff'd on other
grounds, 772 F.2d 92 (4th Cir. 1985)
Panhandle Co-op. Ass'n, Bridgeport, Nebraska
v.EPA, 771 F.2d 1149 (8th Cir.
1985)
*Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership,
507 U.S. 380 (1993)
RAG
Cumberland Resources LP, 26 FMSHRC 639 (2004), petition for review on other
grounds filed December 20, 1994 (D.C. Cir. No. 04-1427)
RAG
Cumberland Resources LP v. FMSHRC, 272 F.3d 590 (D.C. Cir.
2001)
Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (1993), aff'd
on other grounds, 57 F.3d 982 (10th
Cir. 1995)
Robinson v. Shell Oil Co., 519 U.S. 337
(1997)
Salt
Lake County Road Dept., 3 FMSHRC 1714 (1981)
Secretary of Labor v. Cannelton Industries,
Inc., 867 F.2d 1432 (D.C. Cir. (1989)
*Secretary of Labor v. Excel Mining,
LLC, 334 F.3d 1 (D.C. Cir. 2003)
Secretary of Labor on behalf of Wamsley v.Mutual
Mining, Inc., 80 F.3d 110 (4th Cir.
1996)
Sedgman and David Gill, FMSHRC Nos. SE
2002-111, etc., petitions for discretionary review granted, December 10,
2004
Spurlock Mining Co., 16 FMSHRC 697 (1996)
Steele Branch Mining, 18 FMSHRC 6 (1996)
Tazco, Inc., 3 FMSHRC 1895 (1981)
Telecommunications Research & Action Center v.
FCC, 750 F.2d 70 (D.C. Cir. 1984)
Thunder Basin Coal Co. v. Reich, 510
U.S. 200 (1994)
Time
Warner Entertainment Co., L.P. v. FCC, 240 F.3d 1126 (D.C. Cir.),
cert. denied sub nom.
Consumer Federation of America v.
FCC, 534 U.S. 1054 (2001)
Twelve John Does v. District of
Columbia, 841 F.2d 1133 (D.C. Cir. 1988)
United States v. Barnes, 295 F.3d 1354
(D.C. Cir. 2002)
United States v. Brown, 133 F.3d 993
(7th Cir.), cert. denied, 523 U.S.
1131 (1998)
United States v. James Daniel Good Real
Property, 510 U.S. 43 (1993)
*United States v. Montalvo-Murillo, 495 U.S.
711 (1990)
United States v. Rein, 848 F.2d 777 (7th
Cir. 1988)
Western Fuels-Utah, Inc. v. FMSHRC, 870
F.2d 711 (D.C. Cir. 1989)
STATUTES AND
CODES
Federal
Mine Safety and Health Act of 1977, 30
U.S.C. 801, et seq. (1977)
Section 2, 30 U.S.C. § 801
Section 2(c), 30 U.S.C. § 801(c)
Section 101, 30 U.S.C. § 811
Section 103, 30 U.S.C. § 813
Section 103(a), 30 U.S.C. § 813(a)
Section 104, 30 U.S.C. § 814
Section 104(a), 30 U.S.C. § 814(a)
Section 104(d), 30 U.S.C. § 814(d)
Section 104(g), 30 U.S.C. § 814(g)
Section 104(g)(1), 30 U.S.C. § 814(g)(1)
Section 105, 30 U.S.C. § 815
*Section 105(a), 30 U.S.C. § 815(a)
Section 105(b)(1)(B), 30 U.S.C. § 815(b)(1)(B)
Section 105(d), 30 U.S.C. § 815(d)
Section 106, 30 U.S.C. § 816
Section 106(a), 30 U.S.C. § 816(a)
Section 106(a)(1), 30 U.S.C. § 816(a)(1)
Section 106(b), 30 U.S.C. § 816(b)
*Section 110(a), 30 U.S.C. § 820(a)
*Section 110(i), 30 U.S.C. § 820(i)
Section 113, 30 U.S.C. § 823
Section 113(d), 30 U.S.C. § 823(d)
Section 113(d)(2)(A), 30 U.S.C. § 823(d)(2)(A)
Section 113(d)(2)(A)(ii), 30 U.S.C. § 823(d)(2)(A)(ii)
30
C.F.R. § 48.2(f)
30
C.F.R. § 48.7(c)
30
C.F.R. § 100.3
Miscellaneous
Fed. R.
App. P. 4(b)
Fed. R.
Civ. P. 55
Fed. R.
Civ. P. 60(b)
S. Rep.
No. 95-181, 9th Cong., 1st Sess. 34 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 622 (1978)
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GLOSSARY OF ABBREVIATIONS
AND ACRONYMS
Commission
|
Federal Mine Safety and Health Review Commission
|
J.A.
|
Joint Appendix
|
Mine Act |
Federal Mine Safety and Health Act of 1977
|
or Act
|
|
MSHA
|
Mine Safety and Health Administration
|
Secretary
|
Secretary of Labor
|
Stip.
|
Stipulation
|
Tr.
|
Transcript
|
Twentymile |
Twentymile Coal Co. |
Back to TopSTATEMENT REGARDING
JURISDICTION
The Court has jurisdiction over
this proceeding for review of a decision of the Federal Mine Safety and
Health Review Commission ("the Commission") under Section 106 of the
Federal Mine Safety and Health Act of 1977 ("the Mine Act" or "the Act"),
30 U.S.C. § 816. The Commission had jurisdiction over the matter
under Sections 105(d) and 113(d) of the Mine Act, 30 U.S.C. §§ 815(d) and
823(d).
The
decision of the administrative law judge in this case was issued on July
14, 2003. By order dated August 22, 2003, the Commission excused the
late filing of Twentymile Coal Company's ("Twentymile's") petition for
discretionary review of the judge's decision and granted review pursuant
to Section 113(d)(2)(A) of the Mine Act, 30 U.S.C. § 823(d)(2)(A).25
FMSHRC 464, 465. The Commission issued its decision on August 12,
2004. The Commission denied reconsideration of its decision on
August 25, 2004. The Secretary filed a timely petition for review of
the Commission's decision with the Court on August 30, 2004, and Twentymile filed a timely petition for review on September 9,
2004.
The Secretary has standing to appeal the Commission's
decision under Section 106(b) of the Mine Act, 30 U.S.C. §
816(b), and Twentymile has standing to appeal the Commission's decision
under Section 106(a)(1) of the Act, 30 U.S.C. §
816(a)(1). The Commission's decision represents a final Commission
order that disposes of all of the parties' claims.
STATEMENT OF THE ISSUES
PRESENTED
(1). Whether, in
refusing to assess a civil penalty for Twentymile's violation of a
mandatory standard, the Commission disregarded the principles set forth by
the Supreme Court in Brock v. Pierce County.
(2). Whether, in
refusing to consider the fact that Twentymile was not prejudiced by the
time it took the Secretary to propose a penalty, the Commission
disregarded the principles set forth by the Supreme Court in Pioneer
Investment Services Co. v. Brunswick Associates Ltd.
Partnership.
(3). Whether,
in calculating the time it took the Secretary to propose a penalty as
starting when the citation was issued instead of when the accident
investigation was terminated, the Commission disregarded the terms of
Section 105(a) of the Mine Act.
(4). Whether,
in substituting its view of the facts for the judge's view, the Commission
exceeded its authority under Section 113(d)(2)(A)(ii) of the Mine Act.
PERTINENT STATUTES AND
REGULATIONS
Pertinent statutes and regulations are set forth in
the bound Addendum to this brief beginning at page A-1.
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STATEMENT OF THE CASE
A. Nature of the Case
The Mine Act was enacted to
improve safety and health in the Nation's mines. 30 U.S.C. § 801.
In enacting the Mine Act, Congress stated that there was "an urgent need
to provide more effective means and measures for improving the working
conditions and practices in the Nation's * * * mines * * * in order to
prevent death and serious physical harm, and in order to prevent
occupational diseases originating in such mines[.]" 30 U.S.C. § 801(c).
Sections 101 and 103 of the Mine
Act authorize the Secretary, acting through the Mine Safety and Health
Administration ("MSHA"), to promulgate mandatory safety and health
standards for the Nation's mines and to conduct regular inspections of
those mines. 30 U.S.C. §§ 811 and 813. MSHA inspectors
regularly inspect mines to assure compliance with the Mine Act and MSHA
standards. 30 U.S.C. § 813(a).
Section 104 of the Mine Act
provides for the issuance of citations and orders for violations of the
Mine Act or MSHA standards. 30 U.S.C. § 814. If an MSHA
inspector discovers a violation of the Mine Act or a standard during an
inspection or an investigation, he must issue a citation or an order
pursuant to Section 104(a) or 104(d) of the Mine Act. 30 U.S.C. §§
814(a) and 814(d). If the inspector finds that the violation is "significant and substantial" or the result of the mine operator's
"unwarrantable failure to comply," he must include such findings in the
citation. 30 U.S.C. § 814(d).(1) Sections 105(a) and 110(a) of the Mine Act
provide for the proposal and assessment of civil penalties for violations
of the Mine Act or MSHA standards. 30 U.S.C. §§ 815(a) and
820(a).
The Commission is an
independent adjudicatory agency established under the Mine Act to provide
trial-type administrative hearings and appellate review in cases arising
under the Mine Act. 30 U.S.C. § 823. See Thunder
Basin Coal Co. v. Reich, 510 U.S. 200, 204 (1994); Secretary
of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d
110, 113-14 (4th Cir. 1996). A mine operator may contest a citation,
order, or proposed civil penalty before a Commission administrative law
judge. 30 U.S.C. §§ 815 and 823. Any person adversely affected
or aggrieved by an administrative law judge's decision may seek review by
filing a petition for discretionary review with the Commission. 30
U.S.C. § 823. Whether to direct review is committed to the
Commission's discretion. Ibid. Any person adversely
affected or aggrieved by a Commission decision, including the Secretary,
may obtain review by filing a petition for review with an appropriate
court of appeals. 30 U.S.C. § 816(a) and (b).
This proceeding involves the civil penalty
provisions of the Mine Act. Section 105(a) of the Mine Act states in
relevant part:
If, after an inspection or
investigation, the Secretary issues a citation or order under section 104,
[she] shall, within a reasonable time after the termination of such
inspection or investigation, notify the operator * * * of the civil
penalty proposed * * *.
30 U.S.C. § 815(a). Section 110(a) of the Act
states in relevant part:
The operator of a coal or other mine in which a violation
occurs of a mandatory health or safety standard or who violates any other
provision of this Act, shall be assessed a civil penalty by the
Secretary
* * *.
30 U.S.C. § 820(a). Section 110(i) of the Act
states in relevant part:
The Commission shall have
the authority to assess all civil penalties provided in this Act. In
assessing civil monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such
penalty to the size of business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
The mandatory safety
standard at issue in this case is
30 C.F.R. § 48.7(c), which states:
Miners assigned a new task
* * * shall be instructed in the safety and health aspects and safe work
procedures of the task * * *, prior to performing such task.
The term "task" is defined as a "work assignment
that includes duties of a job that occur on a regular basis and which
requires physical abilities and job knowledge." 30 C.F.R. §
48.2(f). The administrative law judge found, and the Commission
affirmed, that Twentymile committed a significant and substantial
violation of Section 48.7(c) when it failed to provide task training to
its miners prior to their performing the new task of unplugging the new
rock chute at its mine. The Commission nonetheless reversed the
judge's imposition of a civil penalty for Twentymile's violation, refusing
to impose any civil penalty for the violation because of the amount of
time the Commission determined it took the Secretary to propose a civil
penalty for the violation. The issues raised by the Secretary relate
to whether, under the Mine Act, the Commission can refuse to assess a
civil penalty for an affirmed violation.
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B. Course of Proceedings and
Disposition Below
This case
arose when, after investigating an accident in which a miner was seriously
injured when he fell from a ladder on the side of the mine's rock chute,
MSHA issued Twentymile an order under Section 104(g)(1) of the Mine Act,
30 U.S.C.§ 814(g)(1),(2) for violating a training standard requiring that
miners be tasked-trained before being assigned to perform new tasks.
Stip. 21 (J.A. 12-13); Tr. 39 (J.A. 87). Twentymile contested the
order, and the case was assigned to an administrative law judge of the
Commission.
In his decision of
July 14, 2003, the judge affirmed the Section 104(g) order, as amended,
finding that Twentymile committed a significant and substantial violation
of Section 48.7(c) when six of its miners engaged in unplugging the rock
chute without having been task-trained in that task. The judge first
held that the order as issued, and as amended at the hearing, was
sufficiently specific to "ascertain the conditions that require[d]
correction and prepare adequately for a hearing." 25 FMSHRC
373, 381 (J.A. 161). The judge noted that the order, as initially
written to cover "[p]ersonnel * * * who had reason to work from or travel
on the ladders and landings of the 'Rock Chute,'" gave Twentymile adequate
notice of who was subject to the order. The judge concluded that "Twentymile * * *
controlled work assignments at the mine" and "[p]resumedly * * * knew
whom it would assign 'to work from or travel on the ladders and
landings.'" 25 FMSHRC at 382 (J.A. 162). The judge further
concluded that, even if the order as initially written lacked sufficient
specificity because it failed to name the individual miners involved, "the flaw was corrected when the order was amended without objection[] to
include the names of those who were not given the requisite task
training." Ibid. The judge noted that "the record is
devoid of evidence that the wording of the order in any way hindered Twentymile in its ability to present a cogent case."
Ibid.
In
affirming the allegation that Twentymile violated Section 48.7(c), the
judge noted that it was uncontested that "none of the miners * * *
assigned to unplug the chute was trained in the job prior to being sent to
do it." 25 FMSHRC at 383 (J.A. 163). The judge concluded that
the job of unplugging the rock chute was a "new task" requiring prior
task training under Section 48.7(c) because it was a "work assignment
that includes duties of a job that occur on a regular basis and which
requires physical abilities and job knowledge" to perform safely. 25
FMSHRC at 383-84 (J.A. 163-64). In determining whether the job of
unplugging the rock chute was one that occurs on a "regular basis"
(see 30 C.F.R. § 48.2(f)), the judge employed a "reasonably
prudent person test." Ibid. He concluded that the job
would occur on a regular basis because "it was reasonable for Twentymile
management to anticipate that the chute would clog as mining continued." 25 FMSHRC at 384 (J.A. 164). The judge found that Twentymile
"actually foresaw the event" on the basis of several factors: (1) that
the chute was provided with four observation doors; (2) that Twentymile
had "installed two internal devices to indicate when material stopped
flowing in the chute * * *"; (3) that other chutes at the mine were known
to have a "recurring problem" of jamming with "the same type of wet,
sticky material" that was directed down the rock chute; and (4) that,
because miners had been sent to unplug other chutes at the mine at least
every several months, "it was reasonable to expect the rock chute would
clog at least as frequently." Ibid.
In
affirming the allegation that Twentymile's violation of Section 48.7(c)
was significant and substantial, the judge found that "[t]he miners' lack
of training made it reasonably likely that an accident would occur." 25 FMSHRC at 385 (J.A. 165). The judge further found that
"given the heights at which miners could be traveling or working and the
heavy material that could spill from the chute, any such accident was
reasonably likely to cause a serious injury." Ibid.
The judge concluded that "Twentymile's failure to provide the required
training made it reasonably likely the miners assigned to unplug the rock
chute would not have sufficient knowledge of available techniques and
procedures to protect themselves from the hazards associated with the
job." Ibid.
Finally,
the judge held that the time the Secretary took to propose a civil penalty
against Twentymile did not, as Twentymile argued, warrant dismissal of the
penalty proceeding. 25 FMSHRC at 386-88 (J.A. 166-68). Noting
that MSHA's accident investigation report was not issued until January 4,
2001, the judge found that "the delay in sending the report and [special]
assessment form to the Assessment Office [on July 31, 2001]" was "understandable" and was
"caused by a shift in personnel and by the
failure of the person who should have completed the form to understand
that it was one of his duties." 25 FMSHRC at 388 (J.A. 168).
The judge also found it "understandable that MSHA did not propose
penalties while the report and special assessment form remained
unfinished" because the proposed penalty "could have been impacted by the
report and form." Ibid. Finally, the judge found that
"the lapse in time between the citation of the violation and the proposal
of the penalty was not prejudicial to Twentymile."
Ibid. Twentymile appealed the judge's decision to the
Commission.
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In its
decision of August 12, 2004, the Commission unanimously affirmed the
judge's findings that Twentymile violated 30 C.F.R. § 48.7(c) in failing
to provide task training to miners assigned the new task of unplugging the
rock chute, and that the violation was significant and substantial 26
FMSHRC 666, 671, 676-81 (J.A. 177, 182-87).(3) A Commission majority (Commissioners Jordan
and Young dissented), however, vacated the civil penalty assessed by the
judge, holding that the assessment of any penalty for the violation
the Commission affirmed would be inappropriate because the Secretary
waited an unreasonable amount of time
(4) before proposing a penalty.26 FMSHRC at 671, 681-88
(J.A. 177, 187-94).(5) The majority rejected as a matter of law the
argument that, at a minimum, a showing of prejudice to the operator must
be established before the extraordinary remedy of vacating a penalty can
be considered. 26 FMSHRC at 682-83 (J.A. 188-89). The majority
held that either a showing of unreasonable delay in the issuance of
a proposed penalty or a showing of prejudice to the operator from
the delay may justify relief from the proposed penalty. 26 FMSHRC at 682
(J.A. 188).
The
majority determined that although there was no evidence of any prejudice
to Twentymile from the length of time it took the Secretary to propose a
penalty -- and although Twentymile alleged no prejudice -- the Secretary
failed to establish adequate cause for that length of time and the judge
erred "as a matter of law" in finding that the delay was reasonable. 26
FMSHRC at 684 (J.A. 190). Relying in significant part on Section
110(i) of the Mine Act, 30 U.S.C. § 820(i), which gives the Commission "authority to assess all civil penalties provided in th[e] Act," the
majority concluded that the Commission was "ultimately responsible for
ensuring that civil penalties are assessed in a fair and expeditious
manner" and was authorized to vacate the penalty in this case "in order
to vindicate the Congressional imperative that mine safety and health
violations be remedied through the prompt and fair imposition of
appropriate sanctions." 26 FMSHRC at 687, 688 (J.A. 193,
194).
In a
dissenting opinion, Commissioners Jordan and Young stressed that the judge
found that the time it took the Secretary to propose a penalty did not
prejudice Twentymile, a finding the operator did not contest, and that any
delays in proposing the penalty were "understandable" and resulted from "a change in personnel and the failure of the person responsible to
understand his duties." 26 FMSHRC at 693 (J.A. 199).
The dissenters concluded that the majority erred in holding "as a matter
of law" that the amount of time taken to propose a penalty was "per se"
unreasonable, thereby unlawfully "substituting their judgment for that of
the judge." Ibid. Reviewed under the "substantial
evidence" standard, the dissenters determined, the judge's conclusion that
the amount of time it took the Secretary to propose a penalty was
reasonable should be affirmed. 26 FMSHRC at 694 (J.A.
200).
The dissenters noted that the
amount of time taken to propose a penalty in this case was similar to that
in other cases the Commission had affirmed as a reasonable amount of time,
and that the legislative history of the Mine Act makes clear that Congress
"explicitly rejected the suggestion that [] delay should necessarily
result in termination of penalty proceedings." 26 FMSHRC at 694-95 (J.A.
200-01). The dissenters stated that the majority's "drastic course"
of vacating the penalty under the circumstances in this case would not
"serve the deterrent purposes intended by the enforcement provisions of
the Mine Act" and "can only erode a miner's confidence in the agency's
ability to ensure that violations of mandatory health and safety standards
will be subject to an appropriate sanction." 26 FMSHRC at 696 (J.A. 202)
(citation and internal quotation marks omitted).(6)
On August
20, 2004, the Secretary filed a petition for reconsideration of the
Commission's decision. The Commission majority denied the petition
for reconsideration on August 25, 2004. The Secretary filed a timely
petition for review of the Commission's decision with the Court on August
30, 2004, and Twentymile filed a timely petition for review on September
9, 2004.
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STATEMENT OF FACTS
Twentymile Coal Company operates the Foidel Creek Mine, a large
underground coal mine in Routt County, Colorado. Stip. 7 (J.A.
11). On June 6, 2000, Kyle Webb, a roof bolter on the continuous
mining crew,(7) was seriously injured at the mine's newly-installed
rock chute. Twentymile installed the chute as an integral part of
the mine's belt conveyor system, and the chute became fully operational on
May 26, 2000. Stip. 16 (J.A. 11); Tr. 40-41, 86, 106, 113, 145, 168
(J.A. 87-88, 99, 104, 106, 114, 119).(8) The chute was developed to divert and transfer
rock from the upper level conveyor belt, where it was mixed with coal, to
the lower level, from where it was carried out of the mine by conveyor
belt. Stips. 11 and 12 (J.A. 11); Tr. 20, 159, 229 (J.A. 82, 117,
135). The chute was a transfer point on the mine's belt conveyor
system. Tr. 229 (J.A. 135).
The rock chute was used to
transport material produced on two continuous miner sections and traversed
a significant geologic fault in the strata of the mine. Tr. 20, 158,
188 (J.A. 82, 117, 124). Although the mine has several other smaller
chutes, those chutes typically are angled at approximately 60 degrees from
the horizontal (rather than angled 90 degrees straight down, like the rock
chute) and differ significantly in design from the rock chute. Tr.
181, 222-23 (J.A. 123, 133-34). Those chutes historically have
become plugged on a recurring basis. Tr. 190-91, 223, 227-28 (J.A.
125, 134, 135).
The rock
chute has a unique design and is five feet square, extending approximately
50 feet deep. Stip. 13 (J.A. 11); Tr. 222-23 (J.A. 133-34). It
can handle 5,500 tons of rock per hour and was constructed with two
internal indicator switches near the bottom to signal if it becomes
plugged. Tr. 163, 179 (J.A. 118, 122).(9) The chute is located inside a circular
vertical shaft known as the "glory hole" that measures approximately 12
feet in diameter. Tr. 79-80 (J.A. 97).
At the time of the accident, a
ladder extended along the side of the rock chute from the top to the
bottom of the shaft. Stip. 14 (J.A. 11). Four landings
accessed by the ladder were spaced at equal intervals (approximately every
ten feet) along the chute. Stip. 15 (J.A. 11); Tr. 50 (J.A. 90).
At each landing was an access door that could be opened to observe or gain
access to the interior of the chute. Stip. 15 (J.A. 11); Tr. 146,
163 (J.A. 114, 118). The doors were secured by two external latches
held in place by eye bolts which had to be loosened to free the latch.
Tr. 95, 163 (J.A. 101, 118).
On June 6, 2000, near the end of
the afternoon shift, the rock chute became plugged and the conveyor belt
feeding the chute automatically stopped, as it was designed to do. Stip.
17 (J.A. 12); Tr. 168 (J.A. 119). Edwin Brady, the mine's conveyance
manager, learned of the plug from two electricians. Tr. 154, 163,
186 (J.A. 116, 118, 124). Brady immediately traveled to the top of
the chute and climbed down the ladder to the landing closest to the top.
Tr. 166-67 (J.A. 119). Brady loosened the eye bolt, lifted the
latch, opened the access door, and observed that rock was jammed inside.
Brady testified that he secured the door and latch and climbed down to the
other three landings, where he performed the same operation and observed
the same condition of jammed rock all the way to the bottom of the chute.
Tr. 166-67, 204-06 (J.A. 119, 128-29).
At the
bottom of the chute, Brady met two members of the production crew, beltmen
Craig Bricker and Rick Fadely. Stip. 18 (J.A. 12); Tr. 169, 170, 189 (J.A.
120, 125). Brady instructed Fadely to climb to the lowest landing,
open the access door, and try prying the jammed rock loose with a steel
bar. Tr. 169 (J.A. 120). Fadely attempted unsuccessfully to
loosen the jammed rock in this manner. Brady then suggested that the
men attempt to unplug the chute with water, and took Bricker with him to
get a hose. Tr. 172 (J.A. 120).
Kevin
Olson, the acting shift foreman, also became aware that the rock chute was
plugged. Tr. 26, 206 (J.A. 84, 129). At the beginning of the
evening shift, Olson assigned Matthew Winey, the production crew foreman,
to go to the bottom of the chute and get it unplugged. Tr. 26, 190,
209, 213-14, 243 (J.A. 84, 125, 130, 131, 139). Olson did not tell
Winey how to perform this assignment. Winey instructed the members
of his crew to travel to the bottom of the chute, where they arrived at
different times. Tr. 214-15, 225 (J.A. 131-32, 134).(10) No one on Winey's crew had ever been on the
chute ladder before. Tr. 188-89 (J.A. 124-25).
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When Winey arrived at the bottom of the chute, Bricker and Fadely were already
helping Brady connect the sections of the hose. Tr. 191 (J.A.
125). Eric Hough, another member of Winey's crew, was also
present. Tr. 174 (J.A. 121). See Tr. 211, 213 (J.A.
131). Fadely and Winey climbed to the lowest level with the
hose. Tr. 215 (J.A. 132). Winey took the hose and attempted to
spray the jammed material loose, but Fadely took the hose from Winey when
Winey began splashing water onto himself and Fadely. Tr. 191-92,
216, 223, 225-26 (J.A. 125, 132, 134). At the same time, Brady began
to hit the bottom of the chute with a hammer. After about five
minutes of applying both approaches, the jammed material started to
move. At no time before or during the unplugging operation did any
miner receive safety training with respect to the operation. Tr.
192, 224, 225 (J.A. 125, 134).
Kyle Webb
was a 26-year-old miner on Winey's crew. Tr. 94 (J.A. 101). At
some point shortly before the jammed material started to move, Webb
climbed the ladder past Winey and Fadely. Stip. 19 (J.A. 12); Tr.
80, 132, 140, 216 (J.A. 97, 110, 112, 132). Winey observed Webb
climb past him. Tr. 216 (J.A. 132). No one, however, asked
Webb where he was going or what he was doing, cautioned him, or tried to
stop him. Tr. 226 (J.A. 134).
About
five minutes after Webb climbed the ladder past Winey and Fadely, and
almost simultaneously with when the jammed rock started to move in the
chute, Webb fell from above and rock started to fall around the ladder
between the chute and the shaft. Stip. 20 (J.A. 12); Tr. 217-18, 226
(J.A. 132, 134). The top access door had come open and, as the
material in the chute started to move, it spilled out the open door and
off the platform. Stip. 20 (J.A. 12); Tr. 26, 175 (J.A. 84, 121).(11) Webb fell past Winey and Fadely and landed
on the bottom landing, and rock fell on top of him. Tr. 49, 80 (J.A.
90, 97). Fadely and Winey took cover under the landing by which they
were working. An electrician at the top of the chute heard the
miners yelling from below, climbed down the ladder, and closed the access
door. Tr. 176, 218 (J.A. 121, 132). Efforts to rescue Webb
then began. Webb was airlifted to a hospital, where he was diagnosed
with a fractured skull and other serious injuries. Tr. 83, 115 (J.A.
98, 106).
MSHA
immediately began an accident investigation under the lead of Inspector
Phillip Gibson. Tr. 18-19 (J.A. 82). Gibson inspected the rock
chute and the site of the accident. Tr. 20 (J.A. 82). After
MSHA's investigators interviewed Winey, Fadely, Brady, and two members of
Brady's crew, they reviewed the mine's training records. Tr. 25, 32,
38 (J.A. 84, 85, 87). They determined that no miner who engaged in
unplugging the chute on June 6, 2000, had received task training in that
activity.
Twentymile completed an accident investigation form and filed it with
MSHA. The form was signed by Production Crew Forman Winey and stated
that the "task being performed" at the time of the incident was "cleaning plugged chute," but left incomplete the line indicating the
person's "experience at [the] task" and whether the person had been "task-trained." Ex. G-11 (J.A. 41); Tr. 86-87, 114-15, 221, 238
(J.A. 99, 106, 133, 137).(12) The form stated that the operator
"should
have planned and talked more" to prevent accidents such as the one that
occurred. Ex. G-11 (J.A. 41); Tr. 117, 239 (J.A. 107, 138). Twentymile's required training plan, which had not been updated since
1993, contained nothing about task training in chute maintenance.
Ex. G-13 (J.A. 64-65); Tr. 127-28, 285 (J.A. 109, 149).
On the
basis of MSHA's investigation, the interviews, and the relevant records,
Inspector Gibson issued a Section 104(g)(1) order on June 16, 2000,
alleging that Twentymile committed a significant and substantial violation
of 30 C.F.R. § 48.7(c) when it permitted miners to unplug the rock chute
without having received task training. Stip. 21 (J.A. 12-13); Tr. 39
(J.A. 87). On July 11, 2000, Twentymile filed a notice of
contest. Tr. 88 (J.A. 99). On August 1, 2000, the judge stayed
the contest proceeding pending the issuance of a proposed civil penalty
but permitted the parties to continue discovery. Tr. 88 (J.A.
99). On January 4, 2001, MSHA issued its accident investigation
report. Ex. G-5 (J.A. 17-32). The MSHA district office
forwarded the accident investigation report and a special assessment form
regarding the violation alleged in the order to MSHA's assessment office
on July 31, 2001, and the assessment office issued a proposed penalty on
November 9, 2001. Tr. 76-77 (J.A. 96-97).
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SUMMARY OF ARGUMENT
The issue in this case is
whether, under the Mine Act, the Commission can affirm a violation of a
mandatory standard cited by the Secretary but vacate the civil penalty
assessed for the violation, and order that no penalty be assessed, because
of the amount of time it took the Secretary to propose the penalty.
The Commission majority concluded that "the extraordinary remedy of
vacating the civil penalty" (26 FMSHRC at 685 (J.A. 191)) was warranted by
the circumstances surrounding the Secretary's proposal of a penalty in
this case -- an action unprecedented in more than 25 years of Mine Act
litigation before the Commission.
The Commission majority's action
in vacating the civil penalty ignored the well-developed body of case law
holding that, because of the public interest in seeing that important
public rights are enforced, a failure to comply with a statutory
procedural requirement does not void subsequent agency enforcement action
unless there is an indication that Congress intended to remove the power
to enforce the statute, especially where there are less drastic remedies
available. The plain language of Section 105(a) of the Mine Act and
its legislative history indicate that the "reasonable time" provision is
directory rather than a jurisdictional mandate, failure to comply with
which can vitiate the penalty proceeding.
This
principle is supported by the language of Sections 110(a) and 110(i) of
the Act, which plainly indicate that a penalty must be assessed for all
violations of the Mine Act and Mine Act standards and that, in assessing
penalties, the Commission can only consider six specified factors.
The majority's action in vacating the penalty for Twentymile's violation
is also internally inconsistent: if the prompt imposition of a penalty is
vital to the success of the Mine Act's enforcement scheme, the imposition
of no penalty utterly defeats that enforcement scheme.
Even if the Commission
could lawfully vacate the civil penalty because of the amount of time it
took the Secretary to propose a penalty, the Commission majority erred in
vacating the penalty without first considering whether Twentymile was
prejudiced by the amount of time it took to propose the penalty. It
is undisputed that Twentymile was not prejudiced.
In addition, the Commission
majority erred in vacating the civil penalty because it miscalculated the
amount of time it took the Secretary to propose the penalty. The "reasonable time" requirement of Section 105(a) of the Mine Act runs from
the termination of MSHA's inspection or accident investigation. The
majority erred in calculating the amount of time the Secretary took to
propose a penalty from the time Twentymile was cited, rather than from the
time the accident investigation report was complete and the investigation
terminated.
Finally, the Commission majority
erred by substituting its view of what constituted adequate cause for any
delay by the Secretary in proposing a civil penalty for the view of the
judge, who heard the evidence and weighed the facts. The majority
improperly found that the amount of time the Secretary took to propose a
penalty was unreasonable "as a matter of law," rather than examining the
record to determine whether substantial evidence supported the judge's
finding to the contrary.
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ARGUMENT
IN REFUSING TO ASSESS A PENALTY FOR TWENTYMILE'S VIOLATION OF
A STANDARD, THE COMMISSION DISREGARDED ESTABLISHED PRINCIPLES OF
ADMINISTRATIVE LAW AND THE PENALTY PROVISIONS OF THE MINE ACT
A. Applicable Principles and Standard
of Review
In
construing a statute, the Court "looks first for the plain meaning of the
text." United States v. Barnes, 295 F.3d 1354, 1359
(D.C. Cir. 2002). Accord Bullcreek v. NRC, 359
F.3d 536, 541 (D.C. Cir. 2004). If the language of the statute has a
"plain and unambiguous meaning," the Court's inquiry ends so long as the
resulting "statutory scheme is coherent and consistent."
Barnes, 295 F.3d at 1359 (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997) (internal quotation marks
omitted)). Accord Bullcreek, 359 F.3d at
541.
In
deciding whether a statute's meaning is plain, a court "must first
exhaust the 'traditional tools of statutory construction' to determine
whether Congress has spoken to the precise question at issue."
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d
1122, 1125 (D.C. Cir. 1995) (quoting Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843
(1984)). "The traditional tools include examination of the
statute's text, legislative history, and structure, as well as its
purpose." Bell Atlantic Telephone Companies v. FCC,
131 F.3d 1044, 1047 (D.C. Cir. 1997) (internal citations omitted). "If this search yields a clear result, then Congress has expressed its
intention as to the question * * *." Ibid.
"[W]hen
the statute is silent or ambiguous with respect to the specific issue, the
question for [the] court * * * is whether the Secretary's interpretation
is a permissible construction of the statute." Secretary of
Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)
(quoting Secretary of Labor v. Cannelton Industries, Inc.,
867 F.2d 1432, 1435 (D.C. Cir. 1989) (internal quotation marks
omitted)). The Court should defer to "a reasonable interpretation"
by the agency. Excel, 334 F.3d at 6 (quoting Chevron,
467 U.S. at 844). "Moreover, in the statutory scheme of the Mine
Act, 'the Secretary's litigation position before [the Commission] is as
much an exercise of delegated lawmaking powers as is the Secretary's
promulgation of a * * * health and safety standard,' and is therefore
deserving of deference." Excel, 334 F.3d at 6 (quoting
RAG Cumberland Resources LP v. FMSHRC, 272 F.3d 590, 596
n.9. (D.C. Cir. 2001) (internal quotation marks omitted)).
B. The Role of Penalties in
Enforcement of the Mine Act
In Coal Employment
Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989), this Court
recognized that Congress intended the imposition of adequate civil
penalties to be the fundamental mechanism for enforcing the Mine
Act. Examining the legislative history of the Mine Act, the Court
stated:
Congress maintained and
upgraded the civil penalty scheme of the Federal Coal Mine Health and
Safety Act of 1969 ("Coal Act") in order to "induce those officials
responsible for the operation of a mine to comply with the Act and its
standards." Indeed, the sponsor of the 1977 Mine Act singled out the civil
penalty as "the mechanism for encouraging
operator compliance with safety and health standards." * * *.
The Supreme Court as well has recognized that "[t]he importance of [the
civil penalty provision] in the enforcement of the [Coal] Act cannot be
overstated" because monetary penalties provide a "deterrence" that
necessarily infrequent inspections cannot generate. Thus, Congress
envisioned penalties that would "be of an amount which is sufficient to
make it more economical for an operator to comply with the Act's
requirements than it is to pay the penalties assessed and continue to
operate while not in compliance."
Coal Employment Project, 889 F.2d at 1132-33
(internal citations omitted) (emphasis supplied).
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C. In Refusing to Assess a Penalty for
Twentymile's Violation of a Standard, the Commission Disregarded the
Principles Set Forth by the Supreme Court in Brock v. Pierce
County
The
Commission's refusal to assess a penalty for Twentymile's violation of a
standard in this case is subject to the principles set forth by the
Supreme Court in Brock v. Pierce County, 476 U.S. 253
(1986). In Brock, the Court addressed whether the Secretary
of Labor lost the authority to recover misused funds under the
Comprehensive Employment and Training Act because he failed to issue a
final determination of misuse within the 120-day period specified for such
action in the statute. The Court began its analysis by
stating:
This Court has frequently
articulated the great principle of public policy, applicable to all
governments alike, which forbids that the public interests should be
prejudiced by the negligence of the officers or agents to whose care they
are confided. We would be most reluctant to conclude that every
failure of an agency to observe a procedural requirement voids subsequent
agency action, especially when important public rights are at stake.
When, as here, there are less drastic remedies available for failure to
meet a statutory deadline, courts should not assume that Congress intended
the agency to lose its power to act.
476 U.S. at 260 (citations, internal quotation
marks, and footnote omitted). The Court then analyzed the statutory
language and design and the legislative history and determined that there
was "simply no indication * * * that Congress intended to remove the
Secretary's enforcement powers" if he failed to issue a final
determination within the 120-day period. 476 U.S. at 266. The
Court concluded that Congress intended the 120-day period "to spur the
Secretary to action, not to limit the scope of his authority." 476
U.S. at 265.
Since
Brock, the Supreme Court has never construed a statutory provision
stating that the Government shall act within a specified time period,
without more, as a jurisdictional limit precluding later action.
Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-59 (2003)
(summarizing cases). This Court has also never construed such a
provision as divesting the Government of authority to act.
See, e.g., Bro. of Railway Carmen Div., Transportation
Communications Int’l Union v. Pena, 64 F.3d 702, 704 (D.C. Cir.
1995); Gottlieb v. Pena, 41 F.3d 730, 733-37 (D.C. Cir.
1994) (summarizing cases). Underlying all of the case law is the
principle that "[t]here is no presumption or general rule that for every
duty imposed upon the * * * Government and its prosecutors there must
exist some corollary punitive sanction for departures or omissions, even
if negligent." United States v. Montalvo-Murillo, 495
U.S. 711, 717 (1990). When Congress has not affirmatively indicated
that the Government's failure to act within a specified time limit
precludes it from subsequently acting to enforce the law and protect the
public, courts should not, and cannot, "invent a remedy to satisfy some
perceived need to coerce * * * the Government into complying with the
statutory time limit[.]" Montalvo-Murillo, 495 U.S. at
721. Accord Brock, 476 U.S. at 265-66;
Gottlieb, 41 F.3d at 734, 736.
The
question in this case is whether there is "a clear indication"
(Railway Carmen, 64 F.3d at 704) that Congress intended to
authorize the Commission to remedy the Secretary's purported failure to
propose a penalty "within a reasonable time" under Section 105(a) of the
Mine Act by refusing to assess a penalty and thereby depriving the
Secretary of the power to enforce the Act through the imposition of a
penalty. The Secretary submits that there is "simply no indication"
(Brock, 476 U.S. at 266) that Congress intended to authorize the
Commission to devise such a drastic remedy.(13) On the contrary, the Secretary submits,
there are a number of strong indications that it did not.
The
foregoing analysis is supported most explicitly by the text and the
legislative history of Section 105(a) itself. Section 105(a) merely
states that the Secretary shall propose a penalty "within a reasonable
time after the termination of [an] inspection or investigation" that
results in the issuance of a citation or order. Section 105(a)
specifies no consequence if the Secretary fails to propose a penalty "within a reasonable time." Significantly -- indeed, the Secretary
submits, dispositively -- the report of the Senate Committee that drafted
the provision that became Section 105(a) stated:
After an inspection, the
Secretary shall within a reasonable time serve the operator by certified
mail with the proposed penalty to be assessed for any violations.
The bill requires that the representative of miners at the mine also be
served with the penalty proposal. To promote fairness to operators
and miners and encourage improved mine safety and health generally, such
penalty proposals must be forwarded to the operator and the miner
representative promptly. The Committee notes, however, that there
may be circumstances, although rare, when prompt proposal of a penalty may
not be possible, and the Committee does not
expect that the failure to
propose a penalty promptly shall
vitiate any proposed penalty
proceeding.
S. Rep. No. 95-181, 95th Cong., 1st Sess. 34,
reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 622 (1978) (emphasis
supplied). Refusing to assess a penalty for an affirmed violation is
"vitiat[ing] [a] proposed penalty proceeding."
(14)
In addition, the
Secretary's analysis is supported by Sections 110(a) and 110(i) of the
Mine Act. Section 110(a) states that "[t]he operator of a coal or
other mine in which a violation occurs of a mandatory health or safety
standard or who violates any other provision of th[e] Act, shall be
assessed a civil penalty by the Secretary * * *." The first
sentence of Section 110(i) states that "[t]he Commission shall have
authority to assess all civil penalties provided in th[e] Act."
Both the courts and the Commission have interpreted the quoted provisions
to mean that a penalty must be assessed for every violation of a
standard. Asarco, Inc.-Northwestern Mining Dept. v.
FMSHRC, 868 F.2d 1195, 1197-98 (10th Cir. 1989); Allied Products
Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982);
Spurlock Mining Co., 16 FMSHRC 697, 699 (1996); Tazco, Inc.,
3 FMSHRC 1895, 1896-97 (1981).(15) As the Commission explained in Tazco
after analyzing the quoted provisions and the relevant legislative
history:
The language of the two
subsections -- indeed, the language of all of section 110 -- is plainly
based on the premise that a penalty will be assessed for each violation at
both the Secretarial and Commission levels.
* * *.
[B]oth the text and
legislative history of section 110 make clear that the Secretary must
propose a penalty assessment for each alleged violation and that
the Commission and its judges
must assess some penalty for
each violation found.
3 FMSHRC at 1896-97 (emphasis supplied).
Accord Old Ben Coal Co., 7 FMSHRC 205, 208 (1985), and cases
there cited. "When a violation occurs, a penalty follows."
Asarco, 868 F.2d at 1197.
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The
Secretary's analysis is also supported by the second sentence of Section
110(i). That sentence states that, in assessing penalties, the
Commission "shall consider" six factors: (1) the operator's history of
previous violations, (2) the appropriateness of the penalty to the size of
the operator's business, (3) whether the operator was negligent, (4) the
effect on the operator's ability to continue in business, (5) the gravity
of the violation, and (6) the operator's good faith in attempting to
achieve rapid compliance after notification of the violation. It is
an established principle of statutory construction that the "'mention of
one thing implies the exclusion of another thing.'"
Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997)
(quoting Ethyl Corp. v. EPA, 51 F.3d 1053, 1061 (D.C. Cir.
1995)). Because Section 110(i) specifies the six factors the
Commission shall consider in assessing penalties, the Commission may not
consider others. See Ethyl, 51 F.3d at 1058, 1061
(because the statute specified the factors on which EPA was to base its
decisions, EPA could not consider others). The Commission has
recognized as much and has repeatedly held that, in assessing penalties,
it and its judges may not consider factors other than the six factors
specified in Section 110(i). See, e.g., RAG
Cumberland Resources LP, 26 FMSHRC 639, 658-59 (2004) (the judge erred
in considering the breach of a Mine Act purpose), petition for review on
other grounds filed December 20, 2004 (D.C. Cir. No. 04-1427); Ambrosia
Coal & Construction Co., 18 FMSHRC 1552, 1565 (1996) (the judge
erred in considering deterrence). If the Commission may not assess a
penalty on the basis that that penalty will deter the operator from
committing future violations, it may not do what it did here: refuse to
assess a penalty on the basis that that refusal will coerce the Secretary
into acting more promptly in future cases.
In refusing to assess a
penalty in this case, the Commission majority made no mention of the
principles set forth in Brock. Instead, the majority
attempted to justify its refusal primarily on the ground that the first
sentence of Section 110(i) states that "[t]he Commission shall have the
authority to assess all civil penalties provided in th[e] Act." 26
FMSHRC at 687 (J.A. 193). The majority's analysis ignores the
principle that "'the meaning of statutory language, plain or not, depends
on context,'" and that a court "charged with understanding the
relationship between two different provisions within the same statute * *
* must analyze the language of each to make sense of the whole."
Bell Atlantic Telephone, 131 F.3d at 1047 (quoting Bailey v.
United States, 516 U.S. 137, 145 (1995)). Accord
Halverson, 129 F.3d at 184-86. When the first sentence of
Section 110(i) is read in context -- that is, read in conjunction with
Section 110(a) and with the second sentence of Section 110(i) -- it
compels the conclusion that the Commission must assess a penalty for every
violation. The fact that Section 110(i) gives the Commission the
authority to assess penalties does not mean that the Commission has
the authority to refuse to assess penalties.
More broadly, the
Commission majority attempted to justify its refusal to assess a penalty
on the ground that such a sanction was necessary to vindicate "the
overriding purposes" and "uphold the integrity" of the Mine Act. 26
FMSHRC at 686-88 (J.A. 192-94). The short answer to the majority's
approach is that the balancing of interests under the Act "is a task for
Congress" (Brock, 476 U.S. at 266), not a task for the Commission,
and Congress struck a different balance. If Congress had intended to
authorize Section 105(a)'s "reasonable time" provision to be applied as
the Commission applied it here -- an application that "bestow[s] upon the
[mine operator] a windfall" and makes the safety of miners "forfeit to
the accident of noncompliance with statutory time limits" (Montalvo-
Murillo, 495 U.S. at 720) -- Congress would have said so. It did
not.(16)
Finally, the Commission
majority attempted to justify its refusal to assess a penalty on the
ground that it was leaving the finding of a violation intact and that
finding would become part of the operator's history of violations in
assessing future penalties. 26 FMSHRC at 685 (J.A. 191). The
majority's rationalization is internally inconsistent: if prompt
imposition of a penalty is "vital to the success" of the statutory program
(26 FMSHRC at 686 (J.A. 192)), refusal to assess a penalty fundamentally
undercuts that program. More importantly, the majority's
rationalization is inconsistent with Congress' intent: as this Court has
recognized, Congress intended the imposition of a sufficient civil penalty
to be "the mechanism for encouraging operator
compliance with safety and health standards." Coal Employment
Project, 889 F.2d at 1132 (internal quotation marks and citation to
legislative history omitted) (emphasis supplied).(17) See 26 FMSHRC at 696 (J.A. 202)
(dissent) (refusal to assess a penalty "can only erode a miner's
confidence in the agency's ability to ensure that violations of mandatory
health and safety standards will be subject to an appropriate sanction").
In sum, the Secretary submits
that the meaning of the statute is plain: Congress did not intend to
authorize the Commission to remedy the Secretary's failure to propose a
penalty "within a reasonable time" by resorting to the drastic remedy of
refusing to assess any penalty at all. If the meaning of the statute is
not plain -- that is, if Congress' intent is not unambiguous -- the
Secretary's analysis is entitled to acceptance because it is reasonable.
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D. In Refusing to Consider the Fact that
Twentymile Was Not Prejudiced by the Amount of Time It Took the Secretary
to Propose a Penalty, the Commission Disregarded the Principles Set Forth
by the Supreme Court in Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership
Even if the Commission could lawfully refuse to assess any penalty for an
operator's violation under the Mine Act because of the amount of time it
took the Secretary to propose a penalty, it could not properly do so
without first considering whether the operator was prejudiced by that
amount of time. In Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the
Supreme Court addressed when to excuse a party's failure to comply with a
court-ordered filing deadline under the Bankruptcy Code -- an issue
analogous to the issue in this case. The Court concluded as
follows:
Because Congress has provided no other guideposts for
determining what sorts of neglect will be "excusable," we conclude that
the determination is at bottom an equitable one, taking into account
all relevant circumstances surrounding the party's
omission. These include * * * the danger of prejudice to the debtor,
the length of the delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
faith.
* *
* *
* * * [T]he lack of any prejudice to the debtor or to the
interests of efficient judicial administration, combined with the good
faith of respondents and their counsel, weigh strongly in
favor of permitting the tardy claim.
507 U.S. at 395, 398 (footnotes omitted) (emphases
supplied). In so concluding, the majority specifically rejected the
dissent's position that the Court should "permit judges to take account
of the full range of equitable considerations only if they have first made
a threshold determination that the movant is 'sufficiently blameless' in
the delay * * *." Id. at 395 n.14. Lower courts have
applied the principles set forth in Pioneer to a variety of
procedural situations and have emphasized that, under Pioneer, the
absence of any prejudice to the moving party or the interests of efficient
judicial administration, and the good faith of the nonmoving party, should
be given particular consideration in deciding whether to grant a motion to
dismiss. See, e.g., George Harms Construction
Co. v. Secretary of Labor, 371 F.3d 156, 163-64 (3d Cir. 2004)
(applying Fed. R. Civ. P. 60(b)(1) to an Occupational Safety and Health
Review Commission proceeding); United States v. Brown, 133
F.3d 993, 996-97 (7th Cir.) (applying Fed. R. App. P. 4(b) to a criminal
appeal), cert. denied, 523 U.S. 1131 (1998)).
Courts
have likewise held that prejudice is a critical factor when considering
whether to impose dismissal or default for procedural errors under Federal
Rules of Civil Procedure 55 and 60(b). Panhandle Co-op. Ass'n,
Bridgeport, Nebraska v. EPA, 771 F.2d 1149, 1153 (8th Cir.
1985); Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930
(5th Cir. 1976). In cases involving delay in issuing criminal
indictments and delay in issuing citations under the Occupational Safety
and Health Act, the courts have consistently held that the objecting party
must show prejudice. See, e.g., United States
v. Rein, 848 F.2d 777, 781 (7th Cir. 1988) (criminal proceeding);
Havens Steel Co. v. OSHRC, 738 F.2d 397, 399 (10th Cir.
1984), and Donovan v. Royal Logging, 645 F.2d 822, 827-28
(9th Cir. 1981) (OSHA proceedings).
Finally,
the Commission itself has employed a similar sort of analysis in
addressing a similar sort of situation under the Mine Act. In Old
Dominion Power Co., 6 FMSHRC 1886 (1984), aff'd on
other grounds, 772 F.2d 92 (4th Cir. 1985), the operator
argued that a citation should be dismissed on the ground that it was not
issued with "reasonable promptness" within the meaning of Section 104(a)
of the Mine Act, 30 U.S.C. § 814(a). The Commission rejected the
operator's argument and emphasized:
Most important, * * * Old Dominion has not shown that
it was prejudiced by the delay. Indeed, Old Dominion was aware from
the time of its employee's fatal accident that an investigation involving
its actions was being conducted by MSHA, and it has been given a full and
fair opportunity to participate in all stages of this
proceeding.
Id. at 1894 (emphasis supplied).
In direct
contravention of the principles set forth above, the Commission majority
in this case (26 FMSHRC at 682 (J.A. 188)), and the Commission in previous
cases, has held that a showing of prejudice to the operator is not a
prerequisite to an action by the Commission vitiating a proposed penalty
proceeding, and that such prejudice is to be considered only after a
finding of adequate cause for delay in proposing the penalty.
See Steele Branch Mining, 18 FMSHRC 6, 14 (1996) (adopting
the two-step analysis set forth by the Commission in Rhone-Poulenc of
Wyoming Co., 15 FMSHRC 2089, 2092-93 (1993), aff'd on
other grounds, 57 F.3d 982 (10th Cir. 1995)). The Commission
majority held that "[t]he judge in this case determined that the lapse in
time between the order and the penalty proposal was not prejudicial to Twentymile, 25 FMSHRC at 388 [J.A. 168], and the operator does not
challenge that conclusion on review." 26 FMSHRC at 682-83 (J.A.
188-89). For that reason and the reasons set forth above, the
majority erred in vacating the civil penalty in this case. Such an
approach is particularly inappropriate under the Mine Act because it "'represents a drastic course [that] would short circuit the penalty
process, and hence a major aspect of the Mine Act's enforcement scheme'"
(Rhone-Poulenc, 57 F.3d at 984 (quoting Salt Lake County Road
Dept., 3 FMSHRC 1714, 1716 (1981)), even when, as the Commission
majority acknowledged in this case (26 FMHRC at 682-83 (J.A. 188-89)), it
is undisputed that the operator suffered no prejudice. For this
reason too, the Commission's action in this case is inconsistent with
effective enforcement of the Mine Act.
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E. In Calculating the Time It Took the
Secretary to Propose a Penalty as Starting When the Order Was Issued
Instead of When the Accident Investigation Was Terminated, the Commission
Disregarded the Terms of Section 105(a) of the Mine Act
Even if the Commission did not
err for either of the reasons advanced above, it erred because, in
calculating the time it took the Secretary to propose a penalty in this
case, it impermissibly added an extra seven months. Section 105(a)
of the Mine Act states in relevant part:
If, after an
inspection or investigation, the Secretary issues a citation or
order under section 104, [she] shall, within a reasonable time
after the termination of such
inspection or investigation, notify the operator * * * of the civil
penalty proposed * * *.
30 U.S.C. § 815(a) (emphases supplied). Under
the plain language of Section 105(a), a "reasonable time" is to be
calculated starting from the termination of the inspection or
investigation.
In this case, the Secretary
submits, the termination of the investigation occurred when the accident
investigation report was issued. The investigation report was issued
on January 4, 2001, and the Secretary proposed a penalty on November 9,
2001 -- ten months later. The investigation report was not issued,
and the investigation thus was not terminated, until January 4, 2001,
because the primary reviewer of the report at the MSHA district office was
unable to begin working on the report until October 2000, after which he
sought additional information about the accident in November 2000 and then
forwarded the report to two assistant district managers and the district
manager for review. Tr. 75-78 (J.A. 96-97).
The Commission majority
found that the Secretary took 17 months to propose a penalty because it
calculated the Section 105(a) "reasonable time" starting from the
issuance of the underlying order on June 16, 2000. 26 FMSHRC at 685
(J.A. 191). In effect, the majority found that the termination of
the investigation occurred when the order was issued. The decision
as to when MSHA's investigation is complete, however, is committed to
MSHA's unreviewable discretion. See Heckler v.
Chaney, 470 U.S. 821, 835 (1985) (the Food, Drug, and Cosmetic
Act's investigation and enforcement provisions "commit complete
discretion to the Secretary [of HHS] to decide how and when they should be
exercised"); North Carolina Utilities Comm'n v. FERC, 653
F.2d 655, 669 (D.C. Cir. 1981) (FERC's decision "to accept or reject an investigatory report * * * is a necessary adjunct to the agency's
unreviewable discretion to recommend or decline enforcement or rulemaking
proceedings"). Even if MSHA's decision is reviewable, it is
entitled to special deference because it "pertains to an agency's
exercise of its enforcement discretion -- an area in which the courts have
traditionally been most reluctant to interfere." Brock v.
Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986)
(citing, inter alia, Heckler v. Chaney).
In evaluating "why it took seven months to finalize the accident report"
and determining that the accident investigation was complete seven months
before the accident report was issued (26 FMSHRC at 683 (J.A. 189)), the
Commission majority impermissibly intruded on the Secretary's enforcement
discretion and disregarded the terms of Section 105(a).
F. In Substituting Its View of the Facts for
the Judge's View, the Commission Exceeded Its Authority Under Section
113(d)(2)(A)(ii) of the Mine Act
Finally,
in reversing the judge's finding that the time it took the Secretary to
propose a penalty in this case was reasonable, the Commission majority
impermissibly applied a de novo standard of review and
substituted its view of the facts for the judge's. The Commission
may not substitute its own view of the facts "for the view the judge
reasonably reached." Donovan on behalf of Chacon v.
Phelps Dodge Corp., 709 F.2d 86, 90-91 (D.C. Cir. 1983).
Instead, under Section 113(d)(2)(A)(ii) of the Mine Act, the Commission is
required to affirm a judge's findings of fact if they are supported by "substantial evidence." Ibid.
In this
case, the Commission attempted to circumvent Section 113(d)(2)(A)(ii)'s
restriction on its review authority by suggesting that the "reasonable
time" issue was "a matter of law." 26 FMSHRC at 684 (J.A.
190). It is apparent, however, that the issue was a question of
fact. In analogous cases involving findings of "excusable neglect"
under Federal Rule of Appellate Procedure 4(b) and Federal Rule of Civil
Procedure 60(b), courts have applied a deferential "abuse of discretion"
standard (see, e.g., Brown, 133 F.3d at 996, and
Twelve John Does v. District of Columbia, 841 F.2d 1133,
1138 (D.C. Cir. 1988)) and have emphasized that the trial judge "is in
the best position to discern and assess all the facts, is vested with a
large measure of discretion" (Twelve John Does, 841 F.2d at 1138),
and must balance "'all relevant circumstances surrounding the party's
omission.'" Brown, 133 F.3d at 996 (quoting Pioneer
Investment Services, 507 U.S. at 395). The majority's own highly
factual review of the "reasonable time" issue (26 FMSHRC at 683-85 (J.A.
189-91)), and the majority's finding that the time was unreasonable "under the circumstances" (26 FMSHRC at 684 (J.A. 190)), demonstrate that
the "reasonable time" issue was a question of fact. As the
dissenters recognized, the majority "cannot have it both ways": it
cannot rely on the specific "circumstances" of this case and at the same
time pretend that the issue presented is "a matter of law" subject to
de novo review. 26 FMSHRC at 693-94 (J.A.
199-200).
Back to Top
CONCLUSION
For the reasons
stated above in Argument Section C, the Secretary requests that the Court
reverse that portion of the decision of the Commission vacating the civil
penalty for Twentymile's violation of 30 C.F.R. § 48.7(c) and remand the
case for the Commission to reinstate the penalty assessed by the judge.(18) If the Court rejects that approach, for the
reasons stated above in Argument Sections D through F, the Secretary
requests that it vacate that portion of the Commission's decision and
remand the case for the Commission to decide the "reasonable time" issue
in accordance with the governing statutory provisions and case law
principles set forth above.
Respectfully submitted,
HOWARD M. RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor
W. CHRISTIAN SCHUMANN
Counsel, Appellate Litigation
JERALD S. FEINGOLD
Attorney
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Suite 2200
Arlington, VA 22209-2296
Telephone: (202) 693-9335
Back to TopCERTIFICATE OF
COMPLIANCE
Pursuant to Fed. R. App. P.
32(a)(7)(B), (C), D.C. Cir. Rules 28(d) and 32(a)(2), and the Court's
Order of January 12, 2005, I hereby certify that this Brief for the
Secretary of Labor contains 11,262 words as determined by Word, the
processing system used to prepare the brief.
_______________________
Jerald S. Feingold
Attorney
CERTIFICATE OF
SERVICE
I
certify that two copies of the foregoing Brief for the Secretary of Labor
were served by overnight delivery this 28th day of March, 2005,
on:
R. Henry
Moore, Esq.
Jackson
Kelly
Three
Gateway Center
401
Liberty Avenue, Suite 1340
Pittsburgh, Pennsylvania 15222
Thomas
Stock, General Counsel
Federal
Mine Safety and Health
Review Commission
601 New
Jersey Ave., Suite 9500
Washington, D.C. 20001
________________________
Jerald S. Feingold
Attorney
Back to TopADDENDUM
ADDENDUM TABLE OF CONTENTS
(Documents not included)
AUTHORITY
Statutes
Section 104(g), 30 U.S.C. 814(g)
Section 105(a), 30 U.S.C. 815(a)
Section 110(a), 30 U.S.C. 820(a)
Section 110(i), 30 U.S.C. 820(i)
Section 113(d)(2)(A)(ii), 30 U.S.C.
823(d)(2)(A)(ii)
Regulations
30 C.F.R. 48.2(f)
30 C.F.R. 48.7(c)
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________________________________
Footnotes:
(1) A violation is
"significant and
substantial" if it is "of such nature as could significantly and
substantially contribute to the cause and effect of a * * * mine safety or
health hazard * * *." 30 U.S.C. § 814(d). If a violation is "significant and substantial," it may be subject to proposal of an
increased civil penalty (see 30 C.F.R. § 100.3) and may, if
followed by similar violations, lead to issuance of a withdrawal order. 30
U.S.C. § 814(d).
(2) Section 104(g)(1) of the Mine Act provides
that if an authorized representative of the Secretary
find[s] employed at a coal
or other mine a miner who has not received the requisite safety training *
* *, [he] shall issue an order under this section which declares such
miner to be a hazard to himself and to others, and requiring that such
miner be immediately withdrawn * * *, and be prohibited from entering such
mine until [it is] determine[d] that such miner has received the training
required * * *.
30 U.S.C. § 814(g)(1).
(3) At oral argument, the Commission raised
sua sponte the issue of whether the Secretary erred
procedurally in issuing Twentymile an order under Section 104(g) of the
Mine Act rather than a citation under Section 104 of the Act. A
three-member Commission majority held that an order issued by the
Secretary pursuant to Section 104(g) of the Mine Act must (1) identify
with specificity the miners who must be withdrawn from the mine for
failure to receive required training and (2) provide for the immediate
withdrawal of the miners in question. Finding that the Section
104(g) order issued in this case was issued long after the violation had
been abated, the majority modified the order to a citation with
significant and substantial findings issued pursuant to Section 104(a) of
the Act. 26 FMSHRC at 672-75 (J.A. 178-81). The majority then
concluded that the citation, as so modified, and as amended at trial, was
sufficiently specific to provide Twentymile with notice of the conditions
at the mine that were the basis of the violation. 26 FMSHRC at 675-76
(J.A. 181-82). The remaining two Commissioners found it unnecessary
to reach the issue of whether the Section 104(g) order should be modified
to a Section 104(a) citation. 26 FMSHRC at 689 n.28, 693 n.29 (J.A.
195 n.28, 199 n. 29).
(4) The majority determined that
"there was
nearly a 17-month delay from the date of the section 104(g) order, June
16, 2000, until the issuance of the proposed penalty assessment for the
alleged violation on November 9, 2001." 26 FMSHRC at 683 (J.A.
189).
(5) This resolution of the case had never been
suggested by Twentymile and was not addressed in the parties' briefs or at
oral argument before the Commission. Twentymile had requested that
the case be dismissed outright.
(6) Dissenting Commissioner Young agreed with
the majority that, if the Secretary's delay in proposing a penalty is
unreasonable or results in prejudice to the operator, the Commission may
vacate the penalty. 26 FMSHRC at 693 n.30 (J.A. 199 n.30).
Dissenting Commissioner Jordan saw no need to address the issue of whether
the Commission may vacate a penalty because she found that there was no
prejudice to Twentymile and that the judge properly found adequate cause
for the delay in proposing the penalty. Ibid.
(7) The crew worked together at the face
producing coal by means of a continuous mining machine.
(8) Maintenance on the belt conveyor system
was performed on a daily basis, and transfer points such as the rock chute
were part of the mine's conveyor system. Tr. 192-93, 227-28, 230
(J.A. 125-26, 135). Such maintenance was performed by beltmen and
was considered a normal "task" at the mine, but the work of beltmen was
not included in the tasks set forth in the mine's training plan. Ex.
G-13 (J.A. 64-65); Tr. 288-89 (J.A. 150).
(9) After the accident, Twentymile took
several corrective actions to lessen the likelihood of the rock chute
becoming plugged, including the installation of additional plug indication
switches at each access door, a permanently mounted washing system, and
two electromagnetic vibrators. Ex. R-5 (J.A. 75-76); Tr. 179-80
(J.A. 122).
(10) Some members of Winey's crew did not
arrive at the chute until after the accident. Tr. 225 (J.A.
134).
(11) It was never determined how the top
access door came to be open or where Webb was situated on the ladder at
the time of the accident. Tr. 49, 264 (J.A. 90, 144).
(12) The report also listed the five other
miners named by MSHA in the amended order as witnesses to the accident,
placing them at the scene. Ex. G-11 (J.A. 41); Tr. 116 (J.A. 106).
(13) It should be noted that in this case, as
in Brock, there were "less drastic remedies available for failure
to meet a statutory deadline." Brock, 476 U.S. at 260.
If Twentymile was concerned that the Secretary's delay in proposing a
penalty was defeating its ability to obtain a penalty proposal that could
be reviewed by the Commission and a court of appeals, it could have
applied for a court order compelling the Secretary to propose a
penalty. See Gottlieb, 41 F.3d at 734 (citing
Telecommunications Research & Action Center v. FCC, 750
F.2d 70, 80 (D.C. Cir. 1984)). If Twentymile was concerned that the
Secretary's delay in proposing a penalty was prejudicing its ability to
defend itself against the underlying citation, it could have asked the
Commission judge to lift his order staying the merits proceeding pending
the proposal of a penalty -- an order to which Twentymile had
consented. Twentymile did not ask the judge to lift the stay until
August 9, 2001, almost 14 months after the order was issued, when it did
so in response to the judge's status inquiry. August 9, 2001, letter
of R. Henry Moore (J.A. 8).
(14) Dismissing a penalty proceeding outright
(which is what Twentymile asked the judge in this case to do), or
assessing a penalty and then vacating it (which is what a Commission judge
did in a case decided after the Commission decided this case, Sedgman
and David Gill, FMSHRC Nos. SE 2002-111, etc., petitions for
discretionary review granted, Dec. 10, 2004), are also "vitiat[ing] [a]
proposed penalty proceeding."
(15) This Court has not directly addressed
the proposition cited above. In Western Fuels-Utah, Inc. v.
FMSHRC, 870 F.2d 711, 714-16 (D.C. Cir. 1989), the Court questioned
whether Section 110 by itself provides a basis for imposing vicarious
liability under the Mine Act. That proposition is different from the
cited proposition, and the Court's analysis is in no way inconsistent with
the cited proposition.
(16) The Commission speculated that Congress
"would not find parity" if the Secretary were allowed to take 17 months
to propose a penalty while the operator was statutorily required to
contest the penalty within 30 days. 26 FMSHRC at 686-87 and n.27
(J.A. 192-93 and n.27) (citing Section 105(a) of the Act). The
Commission's speculation represents "a classic apples-and-oranges-mix[.]" Time Warner Entertainment Co., L.P. v. FCC, 240 F.3d
1126, 1141 (D.C. Cir.), cert. denied sub nom.
Consumer Federation of America v. FCC, 534 U.S. 1054
(2001). In deciding what penalty to propose, the Secretary must
carefully consider and weigh the six factors specified in Section
105(b)(1)(B) of the Act (the same factors specified in Section 110(i)); in
deciding whether to contest a proposed penalty, the operator need only
make a yes-or-no litigation decision and file a brief notice of
contest. See Section 105(a) of the Act. In proposing a
penalty, the Secretary acts to enforce an important public interest; in
contesting a penalty, the operator does not. For both of these
reasons, the fact that Congress imposed a 30-day requirement on the filing
of penalty contests is in no way inconsistent with the conclusion that
Congress intended to impose a longer, and directory rather than mandatory,
time period on the issuance of penalty proposals. See
Gottlieb, 41 F.3d at 735-36 (to accommodate the Secretary of
Transportation's stated need for flexibility "to ensure the just and fair
handling of cases[,]" and "[i]n view of the complexities likely to be
presented in individual cases and the competing interests at stake,
Congress understandably required the Secretary to act promptly, but also
declined to dictate what would happen if the Secretary failed to do so").
(17) The Secretary fully appreciates the
importance of the prompt imposition of penalties, and has implemented
several measures to ensure that MSHA proposes penalties promptly.
The statutory responsibility for ensuring that MSHA proposes penalties
promptly, however, is vested with the Secretary, not with the
Commission. See United States v. James Daniel Good
Real Property, 510 U.S. 43, 64-65 (1993).
(18) Assuming that the Court affirms Twentymile's violation of the training standard as a
"significant and
substantial" violation, the parties have not contested that the amount of
the penalty assessed by the judge is appropriate for such a
violation.
|