There are basically two types of civil penalty deadlines. There is a statutory deadline for operators to file notices of contest challenging the civil penalty and related citation and findings. There is also a deadline under the rules of the Federal Mine Safety and Health Review Commission for the Secretary of Labor (MSHA) to respond to operator contests by filing a petition for assessment of civil penalty with the Commission within 45 days. (The law actually calls for the Secretary to notify the Commission “immediately” upon receipt of an operator contest, but no consequences were established by Congress if this does not happen.)
Both deadlines can bring a case to an early demise. Most often, however, it is operators who suffer the consequences for not filing a contest on time, but sometimes the government can be precluded from proceeding with a petition for assessment, in which case the citations and penalties are vacated due to there being no satisfactory explanation provided for the delay. A recent decision by Administrative Law Judge Thomas P. McCarthy did exactly that.
Deadline for Secretary of Labor (MSHA) Petitions
In the recent case before Judge McCarthy, Long Branch Energy had timely contested a number of civil penalty assessments, but in spite of the 45-day Commission requirement for the Secretary to respond to the penalty contests, the attorneys for the government allowed anywhere from 7 to 11 months to pass before filing the Long Branch cases.
When the petitions were finally filed with the Commission and were assigned to Judge McCarthy, he found the Secretary’s delay completely unacceptable. Judge McCarthy found unacceptable the government’s motions to permit late filing, in that they cited nothing more than a large volume of cases as the reason for the delay. The judge said that only if there is a good excuse does the burden shift to the operator to show that it will be prejudiced by the late filing (due to the loss of a key witness, for example). In this case, the judge found no satisfactory excuse from the government, and therefore granted Long Branch’s motion to dismiss the late filed cases without any showing of prejudice by Long Branch.
Deadline for Operator Contests
The Federal Mine Safety and Health Act provides:
If, within thirty days of receipt of the notification [of proposed civil penalty] by the Secretary, the operator fails to notify the Secretary that he intends to contest the citation or the proposed assessment of penalty…, the citation and the proposed assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency.
For many years, there was no relief from this deadline. Today, however, if the mistake is caught quickly and a good explanation can be made in a “Petition to Reopen” for how the deadline was missed, it is possible that the Commission might allow the case to go forward. However, a mine operator has a much harder time with deadlines than the government does.
