**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

###### OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA  AVENUEN. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.:202-434-9949

 

## May 26, 2020

 
| SECRETARY  OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION  (MSHA),

                        Petitioner

 

                        v.

 
    GORHAM SAND & GRAVEL INC,
                        Respondent                                                                      |   |   | CIVIL  PENALTY PROCEEDINGS

 

Docket  No. YORK 2020-0027

A.C.  No. 17-00661-503641 

 

Mine:  Unit #63 Portec 1047J 

 

 

Docket  No. YORK 2020-0031

A.C.  No. 17-00663-503642 

 

Mine:  Unit #65 Komatsu BR550 JG CRSHR

 

 

  |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

** **

**ORDER REGARDINGJOINT MOTION FOR SUMMARY DECISION**

** **

            Beforethe Court is a Joint Motion (“Motion”) requesting that these matters be addressedby summary decision. The Motion was filed by an attorney for the Solicitor of Labor.The Respondent is not an attorney. Though not cited in the motion, summarydecision is addressed under the Commission’s procedural rules pursuant to 29C.F.R. §2700.67, which is titled “Summary decision of the Judge.” The Motionadvises that the “parties share the view that the citations at issue arestraightforward and well-documented and accordingly are well-suited to theSummary Decision process. Further the parties assert that it would be moreeconomical to proceed on the papers in this matter, as well as more practical,since the Regional Solicitor’s Office in Boston, Massachusetts has beendirected to work remotely until further notice during the current nationalhealth crisis.” Motion at 1.

 

            TheMotion also seeks to have the “the date for filing of the cross motions forsummary decision be set not sooner than (30) thirty days from the date of thefiling of the instant motion.” *Id.*For the reasons which follow, theCourt grants the request but only to the extent of allowing the parties to filean appropriate, 29 C.F.R. §2700.67 compliant, motion for summary decision. Forthe reasons set forth below, the submission of an appropriate, properlysupported filing will be due by **Friday, June 5, 2020**. 

 

            Forsuch a relatively non-complex matter, these dockets have been handled very poorly.   To begin, both dockets were assigned to this Court on March 25, 2020. On April24th, the Court emailed the parties, in response to an email on thatsame day from the Department of Labor Attorney assigned to this matter (“DOLAttorney”) seeking resolution of these dockets through summary decision. Afterthe Court inquired about its inability to locate one of the dockets throughe-CMS, the DOL Attorney advised that one docket number was incorrectly listed. 

 

With that problem solved, the Courtadvised on the same date, April 24, 2020, that:

 

In a motion forsummary judgment the parties will need to state what the salient agreed-uponfacts are, all of them, and on that basis that there are NO factual disputes,leaving only a legal ruling on the applicability of the cited standard(s) for[the Court] to resolve and if the Secretary prevails [the Court] will thenissue a penalty or penalties, as appropriate, following [its] ruling(s). **[TheCourt] will give the parties 2 weeks to both determine and agree that there areno factual disputes and to submit the motion no later than May 8th.****Pleasebe sure that the motion complies with 29 CFR 2700.67.**

 

April 24, 2020email to the parties. 

 

            May8th came and went, all without any compliance to the Court’s email. OnMay 20, 2020, the Court emailed the parties the following message: “Re: GorhamSand & Gravel Inc YORK 2020-2007 and YORK 2020-0031 (YORK 2020-2007erroneously listed docket by the Secretary). The parties are directed torespond to this Court ... by tomorrow, May 21, 2020, why they have not respondedto the Court, nor filed through  e-CMS per the Court’s directive to them onFriday April 24, 2020, as repeated below.”

 

            An apology followed on May21st, admitting the filing had been overlooked. The Court acceptedthe apology. A promise to file the motions that same day accompanied the DOLAttorney’s apology. The motions were filed but were woefully inadequate, insmall and large, aspects.[1]Docket No. YORK 2020-0027-M erroneously lists another judge as presiding andalso gives the wrong assessment control number in the caption. 

 

Of more concern,both Motions utterly failed to meet the requirements of       § 2700.67, which asnoted, speaks to the Summary decision by the Judge. That rule provides, inrelevant part, that “[a] motion for summary decision shall be granted only ifthe entire record, including the pleadings, depositions, answers tointerrogatories, admissions, and affidavits, shows: (1) [t]hat there is nogenuine issue as to any material fact; and (2) [t]hat the moving party isentitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b), “Grounds.”

 

Of particularimportance here, 29 C.F.R. § 2700.67, subsection (c) details the “Form ofmotion,” providing that “[**a**] **motion *shall* be accompanied by amemorandum of points and authorities specifying the grounds upon which theparty seeks summary decision and a statement of material facts specifying eachmaterial fact as to which the party contends there is no genuine issue. Each materialfact set forth in the statement shall be supported by a reference toaccompanying affidavits or other verified documents.**” (emphasis added). 

* *

            Neithermotion complies with the procedural rule, subsection (c). The Court made itclear back on April 24, 2020 that it gave “the parties 2 weeks to bothdetermine and agree that there are no factual disputes and to submit the motionno later than May 8th.” It also expressly reminded the parties to “[p]lease besure that the motion complies with 29 CFR 2700.67.” April 24, 2020 email tothe parties (emphasis added). 

 

            TheSolicitor’s attorney is a seasoned employee in that office, but even if theindividual were not experienced, the Commission’s procedural rules make therequirements for submission of a motion for summary judgment quite plain. Atthis point, despite being informed that a motion fully compliant with 29 CFR2700.67 was to be filed by May 8th, and in the face of failing tofile the motion by that date, now the DOL Attorney would like at least *another*30 days to file the motion.  Further dawdling is entirely unwarranted. 

**Accordingly, the parties are directed tofile an appropriate, 29 C.F.R. §2700.67 compliant, motion for summary decision byFriday, June 5, 2020.**

** **

**SO ORDERED.**

** **

** **

** **

****/s/ William B.Moran

****William B. Moran

****AdministrativeLaw Judge

 

Distribution:

 

AttorneyJames L. Polianites

U.S.Department of Labor Regional Solicitor

Officeof the Regional Solicitor

JFKFederal Building Room E-375 

Boston,Massachusetts 02203

 

 

GeneFadrigon, III

GorhamSand & Gravel, Inc.

939Parker Farm Road

Buxton,Maine 04093

 

 

RobertS. Wilson

RegionalCounsel

ArlingtonRegional Solicitor's Office

U.S.Department of Labor

20112TH Street South

Arlington,VA 22202-5450

----

[1] The entirety ofboth motions, differentiated only by the docket numbers, stated:          “Theundersigned counsel, after telephonic discussion, jointly request [sic] thatthis matter    be resolved by means of the Commission’s Summary Decision modeof resolution in lieu of      a hearing. The parties share the view that thecitations at issue are straightforward and      well- documented andaccordingly are well-suited to the Summary Decision process. Further  the partiesassert that it would be more economical to proceed on the papers in thismatter, as well as more practical, since the Regional Solicitor’s Office inBoston, Massachusetts has been directed to work remotely until further noticeduring the current national health crisis. The Solicitor’s Office suggests thatthe date for filing of the cross motions for summary decision be set not soonerthan (30) thirty days from the date of the filing of the instant motion. Forthese reasons, the parties jointly urge the Court to grant this request as anefficient and time-saving alternative to a live hearing.” JOINT MOTION OF THEPARTIES TO REQUEST THAT RESOLUTION OF THIS MATTER BE MADE BY SUMMARY DECISIONat 1-2.