By Ellen Smith
Review Commission Chief ALJ Robert Lesnick has denied a motion filed by an MSHA conference litigation representative to stay a case for 180 days due to a “high rate of contests coupled with MSHA’s limited staff.”
While the case involves White Buck Coal Co.’s Pocahontas Mine in West Virginia, it has the potential of affecting all cases before ALJs.
In denying the CLR’s motion, the chief judge said, “While I certainly understand the CLR’s justification, as the commission is also contending with the current backlog, I believe the CLR’s suggested remedy [of extending the case for 180 days] is misguided. Given that the Acting Secretary of Labor [Seth Harris] has assured Congress that the Department of Labor has the resources to manage the backlog, the CLR must look within his own Agency for a remedy to his ‘high rate of contest’ and ‘limited staff[ing]’.”
At a recent meeting of the American Bar Association, Solicitor of Labor Patricia Smith foreshadowed dismissals for 30 out of 74 attorneys currently assigned to the MSHA case backlog. Reportedly, she said the department would close two units working on the backlog project in Arlington, Va., and Atlanta, while maintaining half of the positions in Denver, currently dedicated to the backlog.
Lesnick noted in his order that in March of this year, Senators Jay Rockefeller (D-W.Va.) Joe Manchin (D-W.Va.) along with Congressmen George Miller (D-Calif.) Nick Rahall (D-W.Va.) “sent a letter to Acting Secretary Harris expressing their concerns regarding DOL’s decision to disproportionately reduce MSHA's staffing as a result of sequestration. The backlog-reduction program is being reduced from 74 FTEs to 44 FTEs.
“On May 13, 2013, Acting Secretary Harris responded to the Senators, stating that the reduction was justified due to the Secretary’s ability to maintain a manageable case load following the success of MLBP’s efforts to reduce the backlog since 2010, as well as MSHA’s new strategy to reduce the number of citations contested.”
This is not the first motion to be denied. In a recent decision involving Elk Run Coal Co., Review Commission ALJ Thomas McCarthy denied a request from the Secretary to postpone a trial where DOL said it needed more time because of the sequester (see 20 MSHN 186). In that case, the Secretary asked for the continuance because of “office-closing related activities” during May 2013. The Secretary told ALJ McCarthy that the attorney in the case would have insufficient time to complete a briefing of the case due to the Backlog Office closure.
In denying the motion, Judge McCarthy noted that the DOL attorney had two months to conduct settlement negotiations, and conduct discovery in advance of the hearing. In denying that motion, ALJ McCarthy called the Secretary’s decision to close the Arlington Backlog Office “a self-imposed handicap.”
While the “sequestration” cut DOL’s overall budget by 5 percent, the backlog project will have an overall 40 percent cut in staff,” McCarthy noted.
“In exercising discretion to allocate funds in light of sequestration, the Secretary has decided that it could make cuts to personnel tasked with litigating under the Mine Act, even as the backlog continues. Without discounting or minimizing the personal toll such cuts have on the people tasked with enforcing the Mine Act, the downsizing of the Secretary's efforts to address the backlog does not justify the continuance of the April 8 hearing,” McCarthy said in that case.
WHITE BUCK COAL CO., 6/5/2013, Docket No. WEVA 2013-614