**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**721 19th Street, Suite 443**

**Denver, Colorado, 80202-2500**

**Telephone: (303) 844-5267**

**rmanning@fmshrc.gov**

** **

 

 
| SECRETARY  OF LABOR

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA),

                            Petitioner

               v.

 

CACTUS  CANYON QUARRIES INC,

                            Respondent                                                                           |   |   | CIVIL PENALTY PROCEEDING

 

Docket  No. CENT 2022-0010-M

A.C. No.  41-00009-542457

 

Fairland  Plant & Qys |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------|

 

**ORDER DENYING RESPONDENT’S MOTION FORSUMMARY DECISION**

 

Before: Judge Manning

 

This case is before me upon apetition for assessment of a civil penalty under section 105(d) of the FederalMine Safety and Health Act of 1977. On May 6, 2022, Respondent, Cactus CanyonQuarries Inc. (“Cactus Canyon”), filed a Motion for Summary Decision (“CCQMot.”). Subsequently, on August 15, 2022, the Secretary filed his Objection andResponse to Respondent’s Motion for Summary Decision (“Sec’y Resp.”).[1]I find summary decision is inappropriate and **DENY** Respondent’s motion.

 

Although the procedural posture ofthis case is long and complicated, for purposes of this order only certainevents need be mentioned. On October 4, 2021, Respondent mailed its Notice ofContest to MSHA. Subsequently, on November 26, 2021, i.e., more than 45 daysafter receipt of the Notice of Contest, the Secretary filed a Motion forExtension of Time to File Initial Pleading citing the need for “additional timeto allow the parties to thoroughly explore settlement in this matter.” OnDecember 1, 2021, the Commission’s Chief Administrative Law Judge (the “ChiefJudge”) found that the Secretary had shown good cause and issued an ordergranting the Secretary’s motion and affording the Secretary until January 18,2022, to file the initial pleading (the “Chief Judge’s Order”). After firstasking for reconsideration of the Chief Judge’s Order, which was not granted,Respondent filed a petition for discretionary review on December 23, 2021, challengingthe validity of the Chief Judge’s Order and asking that the case be dismissed. OnJanuary 4, 2022, the Commission issued a notice stating that “after considerationby the Commissioners, no two Commissioners voted to grant the petition [fordiscretionary review] or to otherwise order review.” Finally, on January 18,2022, the Secretary electronically filed the petition for assessment of penalty( the “penalty petition”) with the Commission and served the same uponRespondent via email.

 

Cactus Canyon moves the court tovacate the citations at issue and dismiss the penalty petition with prejudice. CCQMot. 12. Respondent argues the Commission’s decision in *Salt Lake County RoadDep’t.*, 3 FMSHRC 1714 (July 1981), as well as other Commission case law, constitute“Black Letter Law” that “when the Secretary is late-filing a petition, theSecretary must file the petition to institute the proceeding and file a motionfor forgiveness / excuse showing good cause to excuse the late filing.” Respondenttakes issue with the validity of the Chief Judge’s Order and argues the Secretaryfailed to timely file and serve the penalty petition and/or properly show goodcause for why the late filing should be excused.[2]

 

TheSecretary, in his response, argues that the penalty petition was timely filed andserved pursuant to the deadline set forth in the Chief Judge’s Order. Sec’yResp. 10-11. The Secretary asserts it was within the Chief Judge’s discretionto set a new deadline, which the Secretary met by electronically filing thepenalty petition with the Commission and serving the penalty petition onRespondent via email on January 18, 2022. Respondent is not entitled to summarydecision as a matter of law because there is no issue of material fact that theSecretary filed the petition and served Respondent by the deadline set by theChief Judge.

 

I will not revisit the validity ofthe Chief Judge’s Order. The Chief Judge had jurisdiction and control over thiscase when Respondent filed its Notice of Contest on October 4, 2021, untilFebruary 14, 2022, when the case was assigned to me.[3]While the case was under his jurisdiction and control, the Chief Judge, citing“good cause having been shown,” saw fit to grant the Secretary’s motion for anextension of time to file the penalty petition. Although Respondent continuesto dispute the validity of the Chief Judge’s Order, the issue was appealed and,on January 4, 2022, the Commission declined to grant the petition fordiscretionary review and the Fifth Circuit subsequently dismissed Respondent’sappeal. Unlike the Commissioners, I do not sit in a position of review. Accordingly,I decline to review the Chief Judge’s order. 

 

Moreover, principals of the “law ofthe case doctrine” dictate that, absent extraordinary circumstances, courts shouldbe loathe to overturn prior decisions of their own or those of a coordinatecourt, i.e., the Chief Judge. *Christianson v. Colt Industries OperatingCorp.*, 486 U.S. 800, 817 (1988).[4]Here, nothing in the record suggests extraordinary circumstances exist thatwould warrant revisiting the Chief Judge’s determination that good causeexisted for granting an extension of time to file beyond the 45-day limit setforth in Commission Procedural Rule 28(a).[5]

 

Commission case law makes clear thatthe 45-day time limit is not a statute of limitations. *Salt Lake* at1715-1716; *Rhone-Poulenc of Wy. Co.*, 15 FMSHRC 2089, 2092-2093 (Oct.1993). Further, when adequate cause is shown for a delay in filing a penalty,absent evidence of actual prejudice, procedural irregularities are subservientto the substantive purpose of the Mine Act to protect miners. *Long BranchEnergy*, 34 FMSHRC 1984, 1990-1991 (Aug. 2012) (“The requirement in Rule28(a) to file a penalty petition within 45 days cannot be viewed as an avenuefor an operator to seek dismissal on a mere technicality.”)

 

Here, the Chief Judge found goodcause to grant the Secretary’s motion for an extension of time to file thepenalty petition. Moreover, Respondent alleged no actual prejudice. Given theabsence of extraordinary circumstances or actual prejudice, I see no reason torevisit what was already decided by the Chief Judge and unsuccessfullyappealed.

 

Given that the Chief Judge’s ordermust stand, the only questions that remain are whether the Secretary timely filedthe penalty petition and served Respondent by the date set forth in the ChiefJudge’s Order.

 

The Secretary timely filed thepenalty petition with the Commission. Commission Procedural Rule 5 states thatdocuments filed via electronic transmission are “effective upon successfulreceipt by the Commission.” 29 C.F.R. § 2700.5(f). An email dated January 18, 2022,from FMSHRC’s eCMS system confirms the penalty petition was timely received bythe Commission. Sec’y Resp. Ex. I. I find that the Secretary timely filed thepenalty petition in accordance with deadline set forth in the Chief Judge’s Order.

 

The Secretary timely served thepenalty petition upon Respondent. Commission Procedural Rule 7 permits servicevia electronic mail and provides “service is effective upon successful receiptby the party intended to be served.” 29 C.F.R. § 2700.7(c). The Certificate ofService included with the penalty petition indicates the Secretary emailed thepenalty petition on January 18, 2022. Moreover, an email dated the same dateconfirms the Secretary sent a digital copy of the penalty petition toRespondent.[6]Sec’y Resp. Ex. J. I find that the Secretary timely served the penalty petitionin accordance with deadline set forth in the Chief Judge’s Order.

 

For the reasons stated above,Respondent’s Motion for Summary Decision seeking dismissal of this case is **DENIED**.[7]

 

 

 

 

/s/Richard W. Manning 

                                                                        RichardW. Manning 

                                                                        AdministrativeLaw Judge

 

 

 

Distribution(First Class Mail and email):

 

ChrisLopez-Loftis, Esq., Office of the Solicitor, U.S. Department of Labor, MSHA,525 S. Griffin Street, Suite 501, Dallas, TX 75202 (lopez.christopher.d@dol.gov)

 

AndyCarson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654 (acarsonmarblefalls@aol.comccqmarblefalls@aol.com)

 

 

 

 

----

[1] At the timeRespondent filed its motion the case was stayed pending an appeal to the FifthCircuit Court of Appeals. On July 18, 2022, the Fifth Circuit dismissed theappeal for lack of subject matter jurisdiction. Subsequently, I lifted the stayand ordered the Secretary to file his response to the motion by no later thanAugust 15, 2022.

 

[2] Although otherissues, such as the appropriateness of the previous stay and my ability to ruleon the motion during the pendency of the appeal, were raised in Respondent’smotion, those issues are moot and not addressed in this order.

 

[3] The Secretarycites the Supreme Court’s decision in *Thunder Basin Coal Co. v. Reich*,510 U.S. 200, 209 (1994), for the proposition that “actions before theCommission are initiated not by the Secretary but by a mine operator who claimsto be aggrieved.” I previously found Commission jurisdiction began when theNotice of Contest was filed. Cactus Canyon Quarries Inc., 44 FMSHRC 353, 354(April 2022) (ALJ). Accordingly, the Chief Judge properly had jurisdiction overthis case at the time he issued his December 1, 2021 order.

 

[4] The law of the case doctrine“expresses the practice of courts generally to refuse to reopen what has beendecided[.]” *Christianson* at 817 (quoting *Messenger v. Anderson*,225 U.S. 436, 444 (1912)). I note the Sixth Circuit Court of Appeals has heldthat “a transferee judge ought as a practical matter to accord considerabledeference to the judgment of the transferor court[,]” *In re Upjohn Co.Antibiotic Cleocin Prods. Liab. Litig.*, 664 F.2d 114, 120 (6th Cir. 1981),and as “[a]pplied to coordinate courts, the [law of the case] doctrine is adiscretionary tool available to a court in order to promote judicialefficiency. As such, a decision to reconsider a previously decided issue willbe deemed erroneous only if it is shown that the transferee court abused itsdiscretion.” *U.S. V. Todd*, 920 F.2d 399, 403 (6th Cir. 1990).

 

[5] CommissionProcedural Rule 28(a) states that “[w]ithin 45 days of receipt of a timelycontest of a proposed penalty assessment, the Secretary shall file with theCommission a petition for assessment of penalty.” 29 C.F.R. § 2700.28(a).

 

[6] The recorddemonstrates that on January 18, the Secretary emailed the penalty petition tothe official email address for Respondent and also emailed a copy to AndyCarson, counsel for Respondent.

 

[7] CommissionProcedural Rule 67(b) states that the Court may grant summary decision wherethe

“entirerecord...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).