There Are Deadlines To Contest/Challenge MSHA Enforcement Actions, But The Deadlines Are Not Always Obvious
By Erik Dullea
Operators generally know there are deadlines to contest/challenge MSHA enforcement actions, but the deadlines are not always obvious. One recent case, Secretary of Labor v. Sims Crane, Docket Nos. SE 2016-81 and SE 2017-97, involving one citation and one imminent danger order is a good reminder that deadlines and clear communications with the judge can be more important than they seem.
These cases were resolved after two hearings with an administrative law judge, before and after a decision by the Federal Mine Safety and Health Review Commission (Commission) on Sims Crane’s Motion to Reopen the imminent danger order.
The cases can be summarized as follows:
Facts
- Sept. 23, 2015, MSHA inspector sees a crane parked on a low-boy trailer, man exits the crane’s cab and walks across the wheels and fender to exit the crane.
- The man was 7 to 8 ft. off the ground on the wheel.
- Inspector issued an Imminent Danger Order under § ١07(a) of the Mine Act (the Order) and an S&S Citation, alleging a violation of 30 C.F.R. § 56.15005, which requires in part that “safety belts and lines shall be worn when persons work where there is danger of falling …” (the Citation).
- The Citation specifically mentioned the Order.
- The Order and Citation were terminated by instructing the driver on the use of fall protection.
Procedural History
- Between September and December 2015, Sims Crane took no action towards the Order.
- On Dec. 3, 2015, Sims received MSHA’s proposed penalty for the Citation.
- MSHA does not assess penalties for § 107(a) Orders.
- Sims checked the box on MSHA Form 1000-179 that reads “I wish to contest and have a formal hearing on all violations listed in the Proposed Assessment.”
- MSHA received the completed form on Dec. 23, 2015.
- Sims made periodic pre-trial updates to the judge asking for the Citation and Order to be vacated.
- MSHA never objected to Sims asking for the Order to be vacated, writing in its pre-hearing report that “all aspects of the Citation and [Order] are at issue …”.
- Shortly before the hearing, the judge asked whether the Order had been properly contested.
During and after the hearing, Sims argued the Order was contested because Sims filled out Form 1000-179, and because the Citation referenced the Order, contesting the former contested the latter.
The judge held that the facts and circumstances did not support the S&S Citation, and there was no negligence by Sims. But he also ruled that the Order had not been properly contested. He could not rule on its validity, because he lacked jurisdiction based on Commission Rule of Procedure 22(a):
(a) Time to file. A notice of contest of a withdrawal order issued under § 107 of the Act…, shall be filed with the Commission … within 30 days of receipt of the order ….
Unlike citations, which can be contested within 30 days after issuance, or within 30 days after receiving the proposed penalty, there is no penalty for a § 107(a) order. Section 107(a) orders must be contested within 30 days of issuance, modification or termination. Sims needed to contest the Order by Oct. 23, 2015 under Rule 22.
Aware of the judge’s concerns about the Order, Sims filed a Motion to Reopen the Order with the Commission on Dec. 19, 2016. This was 14 months after the Rule 22 deadline to contest the Order. This period was significant to the Commission.
The Commission looks for legal or factual justifications reopen an enforcement action, because the judicial system prefers that cases be decided on their merits, not procedural errors. The Commission’s approach utilizes the Federal Rules of Civil Procedure (“FRCP”) that are used in our federal court system. FRCP 60 states, in part, that … the court may relieve a party … from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; or …
(6) any other reason that justifies relief.
However, FRCP 60(c) also provides that such a motion “must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the entry of the judgment ….”
The Commission normally uses the mistake-excusable neglect justification to reopen orders and citations, but for Sims, that would violate FRCP 60(c) because Sims filed the Motion to Reopen 14 months after the Order was final. The Order could only be reopened under the catch-all “any other reason that justifies relief.” The Commission rarely invokes the catch-all exception, and only when there are “extraordinary circumstances” present.
The Commission concluded that Sims had faced extraordinary circumstances, but it was not unanimous. The majority decided that Sims’ pre-hearing updates stating it wanted to contest the Order and MSHA’s confirmation that the Order was in dispute, supported a finding of extraordinary circumstances.
One commissioner dissented, arguing that re-opening the Order served no purpose, because it had already been terminated and carried no penalty. The majority disagreed, and for good reason.
Elevated enforcement actions have purposes and consequences beyond monetary penalties. The majority noted that §107(a) violations are one of the factors in Pattern of Violations determinations, but there are other concerns too.
Publicly traded companies must report elevated enforcement actions in their SEC filings. Elevated enforcement actions can have adverse effects on supervisor performance reviews, and promotion prospects. Hence, an operator’s ability to challenge the merits of an enforcement action serves a useful purpose.
When the re-opened Order was put back in front of the judge, he ruled that the Order was improper. Sims Crane won on the merits.
What’s the moral to the story?
- There are unique deadlines to challenge specific enforcement actions.
- When you communicate with the judge, be clear in what you are seeking.
- If you are not positive that one of your arguments has been raised to the judge, ask.
- Legal ambiguities are like fish in the refrigerator – they don’t get better with age.
Erik Dullea is a partner at Husch Blackwell. As a member of its Technology, Manufacturing & Transportation team, he focuses on administrative/regulatory law, with an emphasis on heavily regulated industries and government contractors. He can be reached at [email protected].