<DOC>
[DOCID: f:se2000133o1.wais]

 
July 24, 2000
JIM WALTER RESOURCES, INCORPORATED
SE 2000-133

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                 1730 K STREET, N.W., Room 6003
                  WASHINGTON, D. C. 20006-3867
                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030

                          July 24, 2000

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. SE 2000-133
                  Petitioner    : A. C. No. 01-01401-04327
                                :
                v.              : Docket No. SE 2000-134
JIM WALTER RESOURCES            : A.C. No. 01-01401-04328
  INCORPORATED,                 :
                                :
                  Respondent    : Mine No. 7

ORDER ACCEPTING LATE FILING

Before:Judge Barbour

     On July 3, 2000, this office received the Secretary's
Petition for Assessment of Civil Penalty accompanied by a
Motion to Permit Late Filings.  In her motion, the
Secretary states that the petition was due no later than
June 26, 2000.  She further states that her support staff
consists of two legal assistants, one of whom was out of
the office during the week of June 19, 2000.  This meant
that one legal technician assumed responsibility for all
the administrative, clerical, and office management
tasks, including the preparation of litigation case
materials.  According to the Secretary, during this week,
the above captioned cases were inadvertently overlooked.

     On July 10, 2000, Counsel for the Respondent filed a
Statement in Opposition to Petitioner's Motion to Permit
Late Filings.  In the statement, Counsel disputes that
MSHA received the Notice of Contest on May 10, 2000,
claiming that an agent of the Secretary received the
Contest on May 5, a reasonable delivery time from the
alleged May 2, mailing date plus one additional day.
Counsel for the Respondent argues that the Respondent's
time to contest any citation elapsed on May 7, so if the
Secretary did not receive the Contest until May 10, she
should have moved the Commission to issue an order
requiring the Respondent to pay the proposed penalties,
pursuant to 29 C.F.R.  2700.27.  She did not do so.
Therefore, Counsel states that the Secretary's failure to
make such a request is either an admission that MSHA
received the Contest earlier than May 10, or that the
Secretary failed to handle the cases properly.

     Counsel for the Respondent further argues that the
Secretary does not have adequate cause for the late
filing, as required by Salt Lake County Road Department,
7 FMSHRC 1714, 1716 (July 1981), because the Secretary
has not alleged any heightened or unusual caseload.
Counsel proffers that the Secretary has attempted to
place the blame for the late filings on the legal
technician, but Commission rules place the burden on the
Secretary and the Secretary alone.  Counsel charges that
such displacement of blame constitutes "legal
malpractice" on behalf of the Solicitor, that the reason
given for the delay is not an excuse, that the delay was
in the control of the Secretary, and that in filing the
Motion to Permit Late Filings, the Secretary did not act
in good faith.

     Finally, Counsel for the Respondent argues that the delay
presents a danger of unfair prejudice to Respondent and
that "[r]ewarding the Solicitor's malpractice and the
Secretary's negligence in these cases would be...
improper, unfair, and unjust." [1]

     Counsel for the Secretary filed a response to the
Respondent's Statement of Opposition, which included a
signed affidavit from a supervisor from the Civil Penalty
Compliance Office, swearing that MSHA received the Notice
of Contest on May 10, 2000.

                           DISCUSSION

Date of Contest

     I conclude that Respondent's contentions regarding the
date on which MSHA received the Contest are without
merit.  First, Counsel fails for provide any evidence
that MSHA received the Contest before May 10, 2000.  He
seems to argue that because the Respondent mailed the
Contest to MSHA on May 2, that the Contest should have
arrived sooner that May 10.  However, the Secretary has
filed with the Commission a copy of the Notice of Contest
with a May 10 stamp date.  Moreover, a Civil Penalty
Compliance Office supervisor has sworn that May 10 was in
fact the date of receipt.  Ordinary experience teaches
that the postal service is not infallible, and it is
conceivable that something mailed on May 2, could have
been received on May 10.  Further, I do not believe that
MSHA fraudulently would date the Notice of Contest or
that the supervisor would swear falsely.   Therefore, I
find that the Contest was received on May 10, and that
the Secretary had until June 26, to file the penalty
petition.

     Second, the Secretary's failure to move the  Commission
to issue an order requiring the Respondent to pay the
proposed penalties is not evidence that the Contest was
received earlier than May 10, or that the Secretary
mishandled the cases.  As Counsel for the Secretary
points out, Commission Rule 7(c), 29 C.F.R.  2700.7(c),
states in pertinent part: "service by mail . . . is
effective upon mailing."   Thus, whether the Notice of
Contest was mailed on May 2, as Counsel for the
Respondent argues, or on May 4, as the Counsel for the
Secretary maintains, it was not overdue regardless of
when the Secretary received the Contest.

Adequate Cause

     Respondent's Counsel next argues that the Secretary did
not have adequate cause for the late filing.  Section
105(d) of the Mine Act states in pertinent part: "[i]f,
within 30 days of receipt thereof, an operator of a coal
or other mine notifies the Secretary that he intends to
contest the issuance or modification of an order issued
under section 104 . . . the Secretary shall immediately
advise the Commission of such notification, and the
Commission shall afford an opportunity for a hearing."
Further, Commission Rule 28, 29 C.F.R.  2700.28, states
that, "within 45 days of a timely contest of a proposed
penalty assessment, the Secretary shall file with the
Commission a petition for section 105(d)." Salt Lake, 7
FMSHRC at 1715.   Although the purpose of Section 105 (d)
and  Rule 28 are to effectuate swift enforcement, Salt
Lake at 1715, the Commission has made clear that they
should not be interpreted "to create a statute of
limitations nor should the term immediately in Section
105(d) be construed as a procedural strait [jacket]." Id.
at 1716.  The Commission has held that the Secretary may
request permission for late filing if the request is
based upon "adequate cause." 7 FMSHRC at 1716.

     Legal precedent dictates that clerical errors, including
those committed by agents of the Secretary, are adequate
cause for delay, especially where the delay is short.  In
Apac Company, Docket No. CENT 97-187, unpublished (Dec.
16, 1997) (attached to Patterson Materials Corp., 21
FMSHRC 463, 466 (April 1999)), a petition that was filed
24 days late because of a filing error was accepted. In
Medicine Bow Coal Co., 4 FMSHRC 882 (May 1982), the
Commission ruled that insufficient clerical help was
adequate cause for the 15 day delay.  Even in Salt Lake,
the seminal case, the Commission deemed a lack of
clerical personnel to be adequate cause for the
approximate 2 month delay.

     Although Counsel for the Respondent argues otherwise, the
instant case is similar to Jerry Hudgeons, 22 FMSHRC 272
(Feb. 2000), in which I held that there was adequate
cause for delay where a staff member inadvertently
misfiled a case because in both situations the delay was
caused by the mishandling of files by a staff member.  I
have stated that "adequate cause is based upon the
reasons offered and the extent of the delay." Id. at 273.
The Secretary's explanation for why the petition was
delayed was not a shifting of blame but was the "[reason]
offered." In addition, the delay in this case was a mere
6 days.  Accordingly, I find that the Secretary did not
file her motion in bad faith but had adequate cause for
the delay.

Prejudice

     Finally, Counsel for the Respondent argues that
allowing the late filing "would work a manifest unfair
and unduly prejudiced harm" upon the Respondent.  In
Salt Lake, the Commission stated that even if the there
is adequate cause for the delay  "the operator has an
opportunity to object to the late filing on the grounds
of prejudice."  7 FMSHRC at 1716. Counsel, however,
fails to offer any specific evidence of prejudice.
Absent such a showing, I find that there is no
prejudice.

                              ORDER

     In light of the foregoing, it is ORDERED that the
Solicitor's late filed penalty petition is ACCEPTED.

     It is further ORDERED that the Respondent file its answer
to the penalty petition within 30 days of the date of
this order.

                                David F. Barbour
                                Chief Administrative Law Judge

Distribution: (Certified Mail)

William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 150 Chambers Bldg., 100 Centerview Drive, Birmingham, AL
35216

Guy W. Hensley, Esq., Jim Walter Resources, Inc., P. O. Box 133,
Brookwood, AL   35444

/wd

**FOOTNOTES**

[1] Counsel for the Respondent's accusations of "legal
malpractice" are surprising.  His words express neither the
realities of the record nor the civility the Commission demands
of those who appear before it.  In the future Counsel should not
allow the inevitable irritations of litigation to impinge upon
the courtesy he owes (and usually shows) his fellow litigators.