First Quarterly Progress Report:

Targeted Caseload 

Backlog Reduction

Submitted by:

The Federal Mine Safety and Health Review 

Commission

And

The United States Department of Labor

December 20, 2010
Introduction: 

This is the first quarterly progress report by the Federal Mine Safety and Health Review 

Commission (FMSHRC or “Commission”) and the Department of Labor (DOL or 

“Department”) on the status of the case backlog reduction project described in the Joint 

Operating Plan submitted to Congress on September 7, 2010. This report covers the 

period of July 29, 2010 through October 28, 2010. 

Pursuant to Chapter 7 of Public Law 111-212, the “Supplemental Appropriations Act, 

2010,” the Department received an appropriation of $18,200,000 and the Commission 

received an appropriation of $3,800,000, all of which is available for one year from the 

date of enactment (July 29, 2010) for the purpose of reducing the existing case backlog 

before the Commission, and other purposes related to Mine Safety. 

Of the $18,200,000 provided to DOL, $10,940,750 is being utilized by the Office of the 

Solicitor (SOL) to undertake additional litigation and related legal work to reduce the 

case backlog. The remaining $7,259,250 has been transferred to the Mine Safety and 

Health Administration (MSHA) to be used in the backlog reduction effort ($4,451,000) 

and for the investigation of the Upper Big Branch Mine disaster ($2,808,250). 

FMSHRC Quarterly Activities

Obligations of Supplemental Funds and Additional Staffing for FMSHRC: 

As of October 28, 2010, the Commission had obligated a total of $1,281,882 of 

supplemental funding, of which $655,573 was for salaries and benefits, and $626,309 

was for operational expenses, travel, office space, supplies, and equipment, and start up 

costs for its new office in Pittsburgh, PA. 

The Commission’s Pittsburgh office opened on September 20, 2010, and as of the end of 

the reporting period, seven staff members are currently stationed at that office. The 

Commission has reconsidered its intention to rent space from the MSHA in Rosslyn, 

Virginia, and is currently exploring other options in the Washington, D.C., metropolitan 

area. 

As of October 28, 2010, FMSHRC has fully staffed the positions identified in the Joint 

Operating Plan. 

Judges: Six Administrative Law Judge (ALJ) full time equivalencies (FTE) have 

been filled in two categories. 

 • Four FTE have been filled by senior judges (judges who have retired from 

federal service) who can serve for 12 to18 month terms (pursuant to 5 

U.S.C. § 3323(b)(2) and 5 C.F.R. § 930.209). 

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 • Two FTE have been filled by loaned judges, obtained via the ALJ Loan 

Program administered by the Office of Personnel Management (OPM) 

(pursuant to 5 U.S.C. § 3344 and 5 C.F.R. § 930.208). FMSHRC has 

obtained loaned judges from the Environmental Protection Agency (EPA), 

the Occupational Safety and Health Review Commission (OSHRC), the 

United States Postal Service (USPS), Housing and Urban Development 

(HUD) and the Federal Trade Commission (FTC). 

 

The Commission decided against hiring permanent judges, referred to by the 

OPM as “incumbent judges,” with funds from the supplemental appropriation. 

Law clerks: Six new law clerks have been hired as temporary appointments. 

Two are assigned to the Pittsburgh office and the remaining four are in the 

Washington, D.C., office. 

Legal assistants: Three new legal assistants have been brought on-board as 

contract employees.

Senior Executive Service (SES) position: The Bureau of the Public Debt (BPD) 

(which provides FMSHRC with human resources support) advertised through 

USAJobs for an SES detail. As a result of this advertisement, FMSHRC selected 

a highly qualified Executive who is on board and actively working on case 

backlog issues. 

Attorney advisor: One additional attorney has been hired for the Commission’s 

Office of General Counsel. 

Case Processing and Targeted Backlog Case/Citation Dispositions: 

As of July 29, 2010, FMSHRC had a total of 17,591 cases in its inventory. FMSHRC 

identified 10,424 of those cases as being in the targeted backlog defined in the Joint 

Operating Plan.1

 As noted in the Joint Operating Plan, certain penalty cases contested on 

or after October 1, 2007 through February 28, 2010 are considered by DOL to be priority 

litigation matters. Because these cases are more complex, DOL will not assign them to 

supplemental staff and therefore they will not be included in the targeted backlog. 

Therefore, the number of cases in the targeted backlog is subject to change as DOL 

identifies those priority litigation cases. Any such reduction in the targeted backlog will 

be noted in subsequent quarterly progress reports. From July 29, 2010 through October 

28, 2010, FMSHRC disposed of 1,901 targeted backlog cases involving 8,901 citations. 

 

 

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 The remaining 7,167 cases were either filed subsequent to February 28, 2010, or are not penalty cases. 

(The targeted backlog includes only penalty cases.) 

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Case Priorities: 

FMSHRC’s Office of Administrative Law Judges (OALJ) continues to prioritize cases 

involving fatalities, injuries, flagrant violations, emergency response plans, and 

discrimination complaints. Commission judges will give backlog cases with a high 

number of unwarrantable failure citations/orders the highest priority and cases with a 

large number of significant and substantial citations the second highest priority. The 

SOL team leaders are putting together lists of these high priority cases, which should help 

Commission judges expedite this process. The lists will be sent to the individual judges in 

cases that have been assigned to judges and to the chief judge's office/docket office in 

cases that are currently unassigned. Calendar call cases (involving specific operators or 

specific geographic areas) will also be prioritized. 

Administrative Actions to Facilitate Disposal of Cases

1. Global Settlements and Calendar Calls: FMSHRC is working to increase 

the number of dispositions through global settlement conferences or calendar 

calls. Both global settlement conferences and calendar calls involve more 

than one docket, however they differ in a number of ways. Global settlement 

conferences are meetings presided over by an ALJ scheduled for the express 

purpose of discussing settlements. The conferences are held either in-person, 

or via conference call, and those cases that do not settle are scheduled for 

hearing at a future date. Calendar calls, on the other hand, are hearings 

scheduled in one location sequentially during a specified timeframe, generally 

one or two weeks. During this reporting period, 13 calendar calls were 

scheduled, involving 105 cases and 699 citations. The vast majority of the 

cases were disposed as a result of the scheduled calls. Only 20 cases 

(involving 116 citations) are still pending. 

2. Rulemaking: 

Simplified proceedings rule: FMSHRC anticipates publishing a final rule in 

December 2010. 

Settlement procedure rule: The interim rule took effect on May 27, 2010. 

FMSHRC intends to publish a final rule in November 2010. In addition, 

FMSHRC has made forms for proposed orders available on its website and is 

working with parties to address any technical difficulties. 

Electronic Filing: 

FMSHRC continues to explore electronic products and system designs to replace or 

upgrade its current data management system. Ultimately, a new or upgraded system will 

permit electronic filing, fully electronic case files, electronic assignment and distribution 

of cases, automated notifications to parties, case tracking and other utilities. In order to 

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ensure that FMSHRC is aware of the systems available in the marketplace and to 

ascertain an accurate price range for implementation of the system, FMSHRC is 

exploring the option of publishing a Request for Information (RFI) in FedBizOpps. This 

RFI would ask vendors to inform the Commission about market solutions that could 

fulfill the requirements identified in the RFI, demonstrate the experience of the vendor in 

providing secure electronic filing systems to federal agencies, and provide price 

information for implementing the solution. The Commission will submit a report to the 

Congress no later than January 29, 2011 that will provide a more detailed description of 

the options, costs and timelines associated with this project. 

DOL Quarterly Activities

Allocation of the DOL Appropriation:

Between July 29 and October 28, SOL obligated approximately $2,151,053 for this 

project, of which $1,096,569 is for staff salaries and benefits, and $1,054,484 is for office 

space, equipment and supplies, and other operational expenses. Included in the total 

amount obligated is $897,909 for project staff salaries and benefits in non- project FY 

2010 general funds. In order to ensure that the agency initiated this project as quickly as 

possible, SOL utilized those general FY 2010 funds in August and September, 2010, 

prior to the receipt of the apportionment and allotment of the FY 2010 supplemental 

appropriation funds. 

Between July 29 and October 28, MSHA obligated approximately $2,433,740 for work 

on cases in the targeted backlog, of which $2,002,178 was for staff salaries and benefits, 

and $431,562 was for operational expenses. These costs were met through FY 2010 and 

FY 2011 general funds, as work on these cases was part of MSHA’s existing targeted 

backlog work which included case resolution and litigation-related activities necessary to 

dispose of citations that could be resolved prior to the transfer of cases to SOL and the 

receipt of the apportionment and allotment of the FY 2010 supplemental appropriation 

funds. Now that the bulk of the remaining targeted backlog cases have been transferred 

to SOL, this regular work of Conference Litigation Representatives and other MSHA 

personnel will largely be directed at non-targeted backlog cases before FMSHRC. 

Consequently, going forward, MSHA’s targeted backlog project salary and operational 

costs related to the Technical Advisors referenced elsewhere in this report will be met 

through supplemental funding. MSHA anticipates the spending of supplemental funding 

to accelerate during the course of the project with the recruitment, selection and hiring of 

Technical Advisors essentially complete and as inspector overtime costs for case 

preparation and hearing attendance increase as hearings are scheduled. 

As of October 28, MSHA obligated approximately $2,351,921 for the Upper Big Branch 

mine disaster accident investigation and internal review. Of this amount, approximately 

$1,725,080 was charged to the supplemental appropriation. 

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Additional Staffing for SOL and MSHA:

As of October 28, as is described in greater detail below, SOL has established five new 

offices to handle the backlog reduction litigation: in Nashville, Tennessee; Denver, 

Colorado; Arlington, Virginia; Atlanta, Georgia and Philadelphia, Pennsylvania. 

Approximately 70 additional temporary or term employees have been hired thus far for 

this project. The vast majority are attorneys. Training for the new staff has been 

undertaken to familiarize them with FMSHRC issues, case processing methods, and 

mining methods The SOL attorneys and other staff are now engaged in the initial stages 

of litigating the targeted backlog matters. 

SOL has hired the following categories of staff: 

Nashville, Tennessee: 

• Reassigned 1 supervising attorney. 

• 12 staff attorneys. 

• 4 support staff. 

Atlanta, Georgia 

• 5 attorneys 

• 1 law clerk 

• 2 support staff 

Arlington, Virginia: 

• 1 supervising attorney. 

• 6 staff attorneys. 

• 2 law clerks 

• 1 support staff. 

Philadelphia, Pennsylvania 

• 1 supervising attorney 

• 11 staff attorneys 

• 2 support staff 

Denver, Colorado: 

• 1 supervising attorney. 

• 15 staff attorneys. 

• 1 law clerk 

• 5 support staff 

As of October 28, MSHA has hired five re-employed annuitants and reassigned two 

current employees to work as Technical Advisors on the backlog project. Of these seven, 

two advise SOL on Metal/Nonmetal cases and five are working on Coal cases. One 

additional Technical Advisor for Coal will begin work in Denver on October 31, 2010. 

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There is a vacancy remaining in the Atlanta office and MSHA is working on hiring for 

that position. In addition, MSHA is in the process of hiring six clerical support staff to 

assist SOL in preparing cases. The estimated entrance on duty date for these six hires is 

January 3, 2011.

The current MSHA FTE distribution is as follows: 

 2 Coal FTE in Philadelphia 

 1 Coal FTE in Arlington 

 1 M/NM FTE in Atlanta 

 1 Coal FTE in Nashville 

1 Coal and 1 M/NM FTE in Denver 

DOL Case Processing Activities:

Approximately 66,000 citations were originally estimated in the Joint Operating Report 

as the total targeted backlog of all citations contested between October 1, 2007 and 

February 28, 2010. As a result of more refined records review, the total targeted backlog 

has been revised to be approximately 67,300. As stated above, from July 29, 2010 

through October 28, 2010, the backlog reduction project has resulted in the disposition of 

1,901 cases involving 8,901 citations. 

In the Joint Operating Plan, DOL also provided a projected number of disposals of 

targeted backlog citations for the time period between July 29 and September 30, 2010. 

That projection was between 580 and 680 citations and it has been exceeded. During that 

time period, 1,991 citations (involving 390 cases) from the targeted backlog were finally 

disposed of through SOL's efforts. Additionally, MSHA's Conference Litigation 

Representatives (CLR's) were able to dispose of 4,569 citations (985 cases) during the 

same time period.2

 Thus, a total of 6,560 citations (1,375 cases) were disposed of by 

DOL between July 29 and September 30, 2010. 

A graphic reflecting the status of citation disposition is included as the DOL Appendix to 

the First Quarterly Report at the end of this document. 

Conclusion

The Commission and DOL have made an effective start in the effort to reduce the 

targeted case backlog. In the first quarter, both agencies opened new offices and hired 

additional staff to tackle the backlog. Even with this focus on start-up, significant 

progress was made on disposition of cases in the targeted backlog. 

DOL and FMSHRC intend to meet the following schedule for future quarterly reports: 

 

2

 CLRs are responsible for handling those contested violations before the Commission that do not involve 

complex or novel legal issues. Their workload is generally comprised of violations that do not include 

accidents, fatalities, flagrant violations, or pattern of violations litigation. 

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Quarter 2: Oct 29 – Jan 28, Submit report no later than Feb 28; 

Quarter 3: Jan 29 – Apr 28, Submit report no later than May 27; 

Quarter 4: Apr 29 – July 29, Submit report no later than Aug 29. 

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FMSHRC APPENDIX TO FIRST QUARTERLY REPORT 

ON CASE BACKLOG REDUCTION

During the first quarter of the Supplemental Appropriation, FMSHRC disposed of 2,319 

cases. As reported in this Quarterly Report, 1,901 of these dispositions were from the 

targeted backlog. The remaining 418 cases were either non-targeted cases in the 

FMSHRC inventory as of July 29, 2010 or were cases filed after that date. 

FMSHRC Case Dispositions, 7/29/10 -- 10/28/10

1901 418

Targeted

Backlog

Other Cases in 29-Jul-10

Inventory or Newly Filed in

Quarter

The chart below illustrates that despite this significant number of dispositions in the 

quarter, the FMSHRC case inventory grew to 18,586 as a result of 3,314 new cases being 

filed during the quarter. 

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FMSHRC Case Inventory

10424

8523

7167

6759

3304

29-Jul-10 28-Oct-10

New Cases Filed

in Quarter

Other Cases in

29-Jul-10 Inventory 

Targeted

Backlog

* Note: Targeted backlog includes only penalty cases. Other categories of FMSHRC’s case inventory 

include contest and other cases as well as penalty cases. 

DOL APPENDIX TO FIRST QUARTERLY REPORT 

STATUS OF TARGETED BACKLOG CITATION DISTRIBUTION

67,300

60,740

58,389

52,000

54,000

56,000

58,000

60,000

62,000

64,000

66,000

68,000

Beginning Total

as of July 29, 2010

(10,424 Cases)

Remaining as of

September

30, 2010

(9,049 Cases)

Remaining as of

October

28, 2010

(8,523 Cases)

Targeted Backlog

Total Backlog Citations

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