U.S. DEPARTMENT OF LABOR 

AND 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

Case Backlog Reduction Project Joint Operating Plan 

September 7, 2010 

1
 
Background: 

Pursuant to Chapter 7 of H.R. 4899, the “Supplemental Appropriations Act, 2010,” 

(Public Law No. 111-212), the Department of Labor (DOL) has received an appropriation 

of $18,200,000 and the Federal Mine Safety and Health Review Commission (FMSHRC 

or Commission) has received $3,800,000. These funds are available for one year from the 

date of enactment of the authorizing legislation (July 29, 2010) for the purpose of 

reducing the existing case backlog before the FMSHRC, and other purposes related to 

mine safety. 

In DOL, the funds are made available through the “Departmental Management” account 

to the Office of the Solicitor (SOL) with authority for the Secretary to transfer funds to 

the Mine Safety and Health Administration (MSHA). 

Pursuant to Senate Report No. 111-188 accompanying the enacted legislation, “[t]he 

Committee requests that the Department and FMSHRC submit ... a [joint operating] plan 

not later than 30 days after enactment of this act, and provide quarterly reports thereafter 

on the status of activities identified in the plan. . . .” The Department has engaged in 

discussions with FMSHRC to develop the joint plan, which is comprised of two sections 

describing the operating plan as it will be implemented in each agency. 

Executive Summary 

As of August 2010, approximately 66,000 MSHA violations are pending before 

FMSHRC that were contested on or after October l, 2007, through February 28, 2010. Of 

these, DOL and FMSHRC assume that about 3,000 citations recently have been or will be 

approved for settlement. Therefore, the total backlog is assumed to be about 63,000 

citations or about 10,500 cases. This backlog is the result of the increased contest rate 

since 2006. Violations issued after February 28, 2010 are not included and are considered 

to be the current MSHA caseload. Additionally, those cases considered priority litigation 

matters by SOL (i.e., all accident-related, flagrant, pattern and statutory cases, such as 

those arising under Section 105(c) of the Act) will not be included in the portion of the 

targeted backlog addressed by this operational plan. Since this backlog does not 

constitute the entire caseload pending before the Commission the agencies have agreed to 

describe the defined backlog as the “targeted backlog.” This joint operational plan for the 

period July 29, 2010 through July 29, 2011 is based on the assumption that DOL and 

FMSHRC will receive additional appropriated funds for this purpose in FY 2011 and FY 

2012, as this will clearly be a multi-year effort. 

The agencies began the development of this joint operating plan to attack the targeted 

backlog by reviewing the operational and production capacities and statistics of DOL and 

FMSHRC, and making tentative projections based on numerous assumptions. Through a 

process of consultation and the development of a greater understanding of each other’s 

operational requirements and necessities, the resulting operating plan represents a joint 

effort to attack the targeted backlog in a coordinated and complementary fashion. Such 

coordination with the Commission includes SOL’s agreement to provide the Commission 

2
 
 

 

with a list of all docketed cases that are within the targeted backlog.1 The additional 

staffing configurations and case processing improvements described below are the core 

of the effort to reduce this targeted backlog to the greatest extent possible during the 12-

month period currently funded. 

Each agency has continued to use its own databases, and has developed its production 

assumptions based thereon; however, there is broad agreement on each agency’s 

projected level of case disposition over the 12-month period. DOL projects that the 

additional capacity enabled by the funding will result in the disposition of between about 

18,000 and 22,000 of the total number of about 63,000 citations in the targeted backlog. 

Conversion of the citations to cases (since the average case has approximately six 

citations) results in the number of cases disposed of totaling between approximately 

3,000 and 3,667 cases. FMSHRC projects that it will be able to dispose of between 3,300 

and 3,500 additional cases during the 12-month period. Conversion of FMSHRC’s 

assumed number of cases to citations results in a range of citations disposed of during the 

12-month period of between about 19,800 and 21,000. 

These ranges of production assumptions significantly overlap, and confirm that the 

agencies have reached a general consensus regarding what can be accomplished in this 

12-month period. These assumptions suggest that the overall retirement of the entire 

targeted backlog will take between 2.9 and 3.5 years, at the current level of additional 

resources. 

1

 The process of recording new litigation cases into the Commission’s record keeping system is 

“docketing.” When the Commission is notified of the mine operator’s intent to seek a hearing, it assigns a 

docket “number” that includes a reference to the geographic location of the operator (e.g. WEVA for West 

Virginia). When the case has been given a docket number, it is considered an active litigation matter 

pending with the Commission. Because SOL has used the date of the issuance of each violation as the basis 

for determining which matters are in the targeted backlog, in order to ensure that those matters equate to the 

docketed cases, SOL is providing the issuance dates for docketed cases, to ensure that both agencies are 

tabulating the same matters as the targeted backlog. 

3
 
 

 

Section I 

Department of Labor: Office of the Solicitor (SOL) and Mine Safety and Health 

Administration (MSHA) 

Allocation of the Appropriation 

Of the $18,200,000 provided to DOL, SOL and MSHA will use $15,391,750 for backlog 

reduction. SOL will retain $10,940,750 and $4,451,000 will be provided to MSHA to 

undertake this project. Of the $10,940,750 for SOL, up to $400,000 will be utilized for 

enforcement litigation regarding backlog cases before the Commission that are not 

assigned to the “targeted” backlog. The Secretary has notified Congress of the decision to 

transfer a total amount of $7,259,250 from the Departmental Management line for “Legal 

Services” to MSHA. Of that transferred amount, $2,808,250 is to cover expenses thru 

December 31, 2010, for the Upper Big Branch Mine disaster investigation, and 

$4,451,000 is for the backlog reduction project. 

Fund Deployment 

Office of the Solicitor: 

Backlog Reduction: $10,940,750 (up to $400,000 non-targeted backlog) 

Mine Safety and Health Administration: 

Backlog Reduction: $ 4,451,000 

Upper Big Branch Investigation: $ 2,808,250 

Total Transfer: $ 7,259,250 

Project Description 

SOL considers the targeted backlog reduction efforts to be a standalone project, separate 

from the other litigation and legal services currently provided to MSHA and all other 

DOL agencies. As indicated above, SOL is utilizing $10,540,750 and MSHA is 

requesting $4,451,000 to undertake the targeted backlog reduction effort (concentrated on 

cases filed before FMSHRC between October 1, 2007 and February 28, 2010). 

The $15,391,750 in total DOL funding for backlog reduction will be utilized by SOL and 

MSHA to achieve the following two purposes: 1) reduce the backlog of FMSHRC cases; 

and 2) prioritize the backlog reduction efforts to focus on the worst offenders. 

The successful execution of the backlog reduction project also requires significant case 

management changes at FMSHRC, which are also discussed in the FMSHRC portion of 

this joint report. Consistent with the Congressional intent for this project, SOL is working 

with MSHA to obtain necessary information about each docketed case that is part of the 

4
 
 

 

 

backlog reduction project. The dedicated SOL staff in each SOL region will use this 

information to identify dockets containing a large percentage of violations that present 

“significant and substantial”2

 or “unwarrantable failure”3 allegations. Such violations 

will be considered “priority” matters.4

 Once such dockets are identified, SOL will inform 

FMSHRC in a manner consistent with the applicable procedural rules, so that these 

matters may be properly prioritized and handled in a manner that is in accordance with 

the mandate to focus resources on those matters. 

Additional Staffing for SOL and MSHA 

The resources required for this project consist of additional temporary or term full-time 

equivalent (FTE) or other staff and support services necessary to process, prepare and 

litigate the backlog of cases before the Commission. To develop this program efficiently 

and effectively, the Department is hiring up to about 78 staff for SOL and approximately 

15 for MSHA. DOL does not expect all SOL employees that are hired to be onboard for 

the entire period of the availability of these funds. Therefore, our production assumption 

is that, over the course of the twelve months of this project, SOL will field the equivalent 

of approximately 70 FTEs, an “FTE” being equivalent to a full-time staffer on duty for 

the entire period.5

 SOL personnel will be attorneys and necessary support staff, and will 

be located in SOL’s regions and National Office, as follows: Region 3 

(Philadelphia/Arlington) up to 25 staff, Region 4 (Atlanta/Nashville) up to 25 staff, 

Region 7 (Kansas City/Denver) up to 25 staff, and in the National Office 3 staff. SOL 

initiated the hiring of attorneys in late August 2010, and will bring the remainder of staff 

onboard in September-October 2010. The object class breakout of SOL’s “FTE Object 

Class Expenditures” is included in a chart attached at the end of this plan as Attachment 

A. 

MSHA plans to hire or contract approximately 15 staff for this project and meet the 

additional overtime requirements for existing staff. MSHA plans to field up to three 

technical advisors for each of the three SOL regional offices, for a total of nine staff. The 

agency will also field MSHA clerical staff for this project in each of the six Metal and 

Nonmetal district offices, for a total of six staff. These additional staff, as well as existing 

2

 A significant and substantial violation (“S&S”) is a violation “of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 3

 “Unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. The 

Commission has found that such failure is “characterized by ‘indifference,’ ‘serious lack of reasonable 

care,’ ‘reckless disregard,’ or ‘intentional misconduct.’” 4

 All violations contained in the backlog, as defined, have already been segregated into dockets by 

FMSHRC. It would be inefficient to attempt to reorganize the violations into new dockets containing only 

“significant and substantial” or “unwarrantable failure” allegations. Addressing dockets with the highest 

percentage of such allegations will accomplish the goal of efficaciously disposing of high priority matters 

without creating an administrative quagmire. 

5

SOL employee time spent on this project will be tracked through SOL’s SOLAR and TD systems. Cases 

that are part of the backlog will be tagged by including a specific indentifier in their titles, to easily identify 

these matters and assure proper recording of time. Reports illustrating human resource allocation to the 

project will be generated at regular intervals to demonstrate the project’s progress. 

5
 
 

staff in the Coal district offices, will act as a litigation liaison for the backlog reduction 

project, provide assistance and technical expertise, as well as assist SOL in evaluating the 

merits of individual cases. They will also research information and assemble documents 

from Conference Litigation Representative (CLR) files and other MSHA sources, such as 

accident histories and reports, mine plans, history of methane liberation, similar 

violations at the involved mine or within the District Office purview, reports of Section 

110 investigations, or related financial information. MSHA staff for this project in the six 

Metal and Nonmetal district offices will be new FTEs, while in Coal districts the staffing 

will be with current employees on an overtime basis, due to the fact that Coal already has 

adequate clerical support to handle the requirements of the position after an initial spike 

in activity during the transitional phase of moving cases from the District offices to the 

SOL Regional offices. A more detailed explanation of MSHA’s hiring plan is attached as 

Attachment B at the end of this Joint Report. Attachment C is a chart showing the 

expected timeline for DOL hiring for this project. 

Because of the nature of the funding and the nature of the work that MSHA must perform 

in connection with the backlog reduction plan, some of the MSHA work must be 

performed by existing staff, primarily MSHA inspectors who will be required to support 

litigation efforts by consulting with SOL on the facts of cases and appearing as witnesses 

for depositions and hearings. Because of the training time for inspectors (2 years), their 

other duties cannot be assumed by new FTEs, given the timeframe of the backlog 

reduction project. Consequently, a substantial portion of MSHA’s expenditure will go 

toward overtime for the inspectorate so that MSHA can both support the backlog project 

and meet its mandate to regularly inspect surface mines two times per year and 

underground mines four times per year. 

A more detailed description of the relative placement of SOL and MSHA staff by 

location and category is included in the attached spreadsheet. 

Administrative Actions to Facilitate Disposal of Violations 

In addition to increasing communication between FMSHRC and SOL to prioritize 

litigation matters, SOL and FMSHRC have agreed upon the following administrative 

actions to facilitate the disposition of violations contained in the backlog:

6 

	 Mandatory Disclosures – procedures are being developed for the mandatory 

disclosure of certain categories of documents or the names of non-miner 

witnesses to facilitate settlement or, when necessary, the hearing process. 

	 Judge-Facilitated Settlement Conferences – FMSHRC’s administrative law judges 

will facilitate the settlement process, using methods similar to a mediator or 

employed in other judicial settings. Optimally, these settlement conference 

6

 SOL considers a citation to be disposed of once SOL personnel have completed all required actions for 

submission to FMSHRC, whose administrative law judges will then enter the appropriate order to finally 

resolve the matter. 

6
 
judges will not be the same judge who presides at hearing, if settlement 

negotiations do not result in resolution of the matter. 

	 Calendar Calls – FMSHRC administrative law judges will schedule a series of 

cases at the same hearing time and location and dispose of each matter one after 

the other. The matters will be consolidated based on such factors as: cases 

contested by a single operator involving a particular mine; cases where one 

attorney represents the operator for all dockets; cases involving the same 

inspector(s). 

	 Simplified Proceedings – FMSHRC has proposed a new rule to be codified at 29 

C.F.R. 2700.1, et seq., governing “simplified proceedings.” FMSHRC and SOL 

will work to use these streamlined procedures as much as possible in addressing 

the backlog. 

SOL will also seek to streamline the processing of cases within the backlog by employing 

the Federal Rules of Civil Procedure as a guide for SOL’s motion and discovery efforts 

before the Commission’s Administrative Law Judges (ALJs). For example, SOL 

attorneys will file motions in certain cases requesting the judge to issue an order requiring 

the disclosure of documents by the parties early in the proceedings, and/or to limit the 

scope of discovery. 

DOL Production Assumptions 

The most recent full fiscal year of actual statistics for SOL’s FMSHRC caseload is FY 

2009. In FY 2009, SOL concluded a total of 3,856 MSHA litigation matters, and utilized 

approximately 53 FTEs to accomplish that production. We note that SOL’s definition of 

matters concluded or “disposed of” refers to matters that SOL has completed processing. 

Those matters may remain pending with the Commission. The average number of 

citations per litigation matter handled by SOL is approximately six citations per matter. 

Therefore, in FY 2009, SOL estimates that its attorneys disposed of matters involving 

approximately 23,000 citations (3,856 matters x 6 citations = 23,136 citations). 

Consequently, SOL disposed of approximately 434 citations per FTE in FY 2009. 

The staffing of this project is designed to have experienced permanent or rehired 

annuitants provide the management and leadership for each SOL project office. The 

newly hired term/temporary attorney FTE will vary in grade from GS 11 through GS 14, 

and will generally have litigation or other relevant experience. SOL intends to keep the 

most complex and challenging matters with its existing permanent staff that is already 

proficient at handling cases before FMSHRC. If the 70 FTEs were on board and fully 

trained as of the date of enactment of the enabling legislation, SOL assumes that these 

FTEs could dispose of approximately 26,000 citations during the 12-month operation of 

the project. However, because of the necessary lead time for implementing the project, 

substantial requirement for training and other start-up efforts, SOL has concluded that the 

more realistic assumption is that the additional staff will be able to dispose of between 

7
 
 

 

 

 

 

approximately 3,000 and 3,667 cases (or approximately 18,000 to22,000 citations) during 

the 12-month period. At that rate of disposition, assuming the same FTE level and the 

other estimates, SOL projects that the complete removal of the targeted backlog of 

63,000 citations would take approximately 2.9 to 3.5 years. 

The citation case backlog will be divided geographically, with each of the three 

designated SOL regional office being assigned roughly the same percentage of the total 

number of cases. SOL anticipates that cases will need to be transferred between the 

regional offices to equalize the caseload. For example, the Denver region may take 

backlog cases from SOL’s San Francisco, Dallas, and Chicago regions. 

We expect that the number of cases disposed of per quarter will increase as newly hired 

staff gain training and experience and additional staff members are hired. Accordingly, 

the quarterly breakdown for disposing of citations is as follows: 

QUARTER ASSUMED NUMBER OF CITATIONS DISPOSED 

Q4 FY10 (Partial) 560 – 680 

Q1 FY11 4,260 – 5,210 

Q2 FY11 4,925 – 6,030 

Q3 FY11 4,925 – 6,030 

Q4 FY11 (Partial) 3,330 – 4,050 

TOTAL: 18,000 – 22,000 

8
 
 

Section II 

Federal Mine Safety and Health Review Commission 

A. Background 

As the result of the provisions included in H.R. 4899, FMSHRC is receiving an 

appropriation of $3,800,000 that will be available for one year from the date of enactment 

of the authorizing legislation. These funds were designated to reduce FMSHRC’s current 

case backlog. As of August 10, 2010, the FMSHRC caseload had 17,805 cases, which it 

considers its “general backlog.” 

DOL’s and FMSHRC’s definition of the targeted backlog is a subset of FMSHRC’s 

general backlog, and consists of cases that were filed between October 1, 2007 and 

February 28, 2010.7 As noted above, DOL estimates that the average number of 

citations per case is six. 

In terms of defining how a citation or case is disposed of, FMSHRC considers a case to 

be disposed of at the trial level once a judge issues a decision. DOL considers a citation 

to be disposed of once SOL personnel have finished all required actions for submission to 

FMSHRC (such as the filing of a settlement motion or a post-trial brief). Therefore, there 

will always be some differences between SOL and FMSHRC statistics regarding the 

number of matters that have been disposed of. However, over time the SOL dispositions 

will generally be reflected in FMSHRC dispositions. 

This section of the report outlines FMSHRC’s staffing plan, case processing targets, case 

prioritization system, and the administrative actions it will take to facilitate the disposal 

of cases. 

B. Additional Staffing for FMSHRC 

Well before the final passage of the supplemental appropriation bill, FMSHRC made 

extensive efforts to recruit new staff whose positions would be funded by the 

supplemental appropriation and obtain office space to house the additional staffers. With 

these additional funds, it will hire 17 new employees and open two new temporary 

offices to accommodate its expanded staff. The attached chart (Attachment D) indicates 

the breakdown of new hires. Attachment E indicates hiring dates. 

Offices for the additional staff will be in two new locations: (1) Rosslyn, Virginia, in 

offices leased from the DOL’s MSHA (which occupies the remainder of the space 

pursuant to a lease with GSA) and (2) Pittsburgh, Pennsylvania (where FMSHRC will 

lease space from GSA). There are offices for eight staff members in Rosslyn and for nine 

staff members in Pittsburgh. The Pittsburgh office also has a hearing room. 

7

 A small percentage of cases in this subset will not be counted by DOL as part of the targeted backlog, as 

they are complex cases that will not be handled in the stand-alone project described above. 

9
 
 

 

 

FMSHRC has taken the following actions to hire staff funded by the supplemental 

appropriation: 

Judges 

FMSHRC anticipates hiring six additional FTEs judges in three categories: 

• Permanent judges, referred to by the Office of Personnel Management 

(OPM) as “incumbent judges,” who may be expected to remain with 

FMSHRC indefinitely; 

•	 Senior judges (judges who have retired from federal service) for 12 to18 

month terms (pursuant to 5 U.S.C. § 3323(b)(2) and 5 C.F.R. § 930.209); 

• Loaned judges from various agencies, obtained via the ALJ Loan Program 

administered by the OPM (pursuant to 5 U.S.C. § 3344 and 5 C.F.R. § 

930.208). 

From the above categories, FMSHRC will be hiring: 

• One incumbent judge 

• The equivalent of three full-time senior judges (two full-time senior judges 

and two half-time senior judges) 

• The equivalent of two full-time judges from the ALJ Loan Program. 

On May 6, 2010, FMSHRC wrote to the OPM requesting the loan of 12 ALJs to assist in 

reducing its case backlog. OPM responded affirmatively, and five agencies (the 

Department of Housing and Urban Development (HUD), the Federal Trade Commission 

(FTC), the Occupational Safety and Health Review Commission (“OSHRC”), the 

Environmental Protection Agency (EPA), and the U.S. Postal Service (USPS)) have 

consented to loaning judges to FMSHRC (two from OSHRC and one from each of the 

other agencies) on a temporary, intermittent basis. Pursuant to communications received 

from OPM, these agreements are valid through September 30, 2010, and are subject to an 

expected extension through FY 2011. The Federal Communications Commission has 

also agreed to loan one judge on a temporary, intermittent basis through September 30, 

2011, subject to a possible extension for FY 2012. Although it is currently unclear how 

many cases the seven loaned judges will adjudicate, FMSHRC estimates that they will 

serve as the equivalent to two full-time judges. Each judge will initially be assigned 100 

cases after the memorandum of understanding with the loaning agency is signed. The 

production capacity of the loaner judges can be evaluated after one quarter of activity to 

understand what can be expected from this category of judges. 

FMSHRC sent memoranda of understanding to the six agencies on August 16, 2010. The 

two judges from OSHRC have been sent Commission cases for adjudication. 

10
 
 

 

 

In regards to the training of these new judges, FMSHRC held a Mine Act training course 

for the new hires who have little or no Mine Act experience (which is the case for most of 

the new judges). It has also been evaluating a proposal to provide training to all of its 

judges in high volume case management. 

Law clerks 

Law clerks are attorneys generally hired at the GS-11 level who provide support to the 

ALJs. FMSHRC hired six law clerks on a limited term basis of two years (moving 

towards a 1-to-1 ratio between judges and clerks). The clerks started on August 30, 2010. 

Clerks assigned to Rosslyn will work at FMSHRC’s Washington, D.C. office until the 

Rosslyn space is available. The Pittsburgh clerks will tele-work until that office is 

available. 

The clerks are vital to the efficient trial level adjudication needed to reduce the case 

backlog. The judges, who each have a docket of at least 700 cases, are highly dependent 

on the clerks to communicate with the parties and their attorneys, assist in the disposition 

of settlements, and draft decisions. The clerks are particularly essential due to the high 

volume dockets the judges must manage and the aging of the cases. 

Legal assistants 

Three new legal assistants will be hired on a limited term basis under the supplemental 

appropriation, allowing each of the six new judges to share a legal assistant with one 

other judge. 

Docket clerks 

Although no additional clerks for FMSHRC’s docket office will be hired with funds from 

the supplemental appropriation, FMSHRC intends to hire seven contract docket clerks 

using funds from its FY 2010 budget. Two were hired on August 30, 2010. The 

remaining clerks are expected to be hired by September 30, 2010. These additional 

clerks will be needed to handle the increased work flow in the docket office generated by 

the influx of new cases and by the new judges. (One or two of the docket clerk positions 

may be utilized as additional legal assistants for the new judges.) 

The importance of hiring additional docket clerks cannot be overstated. For example, 

docket clerks process cases when they are first filed, prepare and mail any pre-assignment 

and assignment orders, and process settlement orders. Until FMSHRC institutes an 

electronic filing system, additional docket clerks are needed to handle the pleadings 

received in each case and to perform the tasks which must be completed before a judge is 

even assigned to a case. For example, each year several hundred cases are settled before 

assignment. These cases are reviewed by the Chief Judge, and processed and mailed by 

11
 
 

 

 

 

the Docket Office. In addition, several hundred cases annually are in default status 

before assignment. They are also processed and mailed by the Docket Office. 

Accordingly, FMSHRC anticipates hiring seven contract docket clerks with unobligated 

funds from the FY 2010 budget. These contractors should facilitate the assignment 

process, which includes pulling information from case files for the Chief Judge’s review 

as he decides how to assign cases, entering data into the case tracking system, creating 

assignment orders, and mailing the orders to the parties. As evidence of the benefits of 

docket clerks, in FY 2009, 437 cases were assigned, on average, per month. FMSHRC 

hired five contract docket clerks in October 2009 - the beginning of FY 2010 - and the 

average jumped to 808 assignments per month for FY 2010 (through the end of July). 

Specifically, from October 2009 through March 2010 - the months during which the 

contractors were employed - 899 cases were assigned, on average, per month. However, 

after the contracts ended, the average number of assignments per month decreased to 

672.8 If cases are not assigned in an expeditious manner, they cannot be disposed of 

quickly. 

Senior Executive Service position 

Pursuant to the Congressional mandate to hire a Senior Executive Service (“SES”) level 

individual, FMSHRC advertised this position on July 6, 2010. The SES staffer will 

supervise and oversee the new staff hiring, the development and execution of the plan to 

reduce the general case backlog, and the implementation of an electronic case filing 

system. Because insufficient applications were received, FMSHRC extended the 

application deadline to August 13, 2010. However, no new applications were received. 

It anticipates that one candidate will be interviewed within the next month. 

FMSHRC has consulted with both the Office of Management and Budget (“OMB”) and 

OPM about enlarging the candidate pool. OPM has informed FMSHRC that it can 

publicize the limited term SES opportunity through one of its listservs, which is available 

to agencies participating in the Executive Resources and Development Program. (The 

Executive Resources and Development program provides training to federal managers at 

the SES level and to those who intend to apply for SES positions). FMSHRC will also 

circulate an announcement presenting the SES position as an opportunity for a detail 

from another federal agency. This will be sent through the Small Agencies Council 

(“SAC”) community listserv. Lastly, the Bureau of Public Debt (which provides 

FMSHRC with human resources support) will advertise the SES detail announcement 

through USAJobs, although it is not typically used to publicize SES positions that involve 

details from another agency. 

Attorney advisor 

Under the supplemental appropriation, FMSHRC plans to hire one additional attorney for 

our Office of General Counsel (OGC) (which currently has six attorneys). This will be a 

8 The contracts ended at the beginning of April 2010 for all but one of these contract employees. 

12
 
 

 

term appointment. The OGC, among other things, has the lead role in handling cases that 

have been appealed to the five FMSHRC Commissioners. Because of the recent increase 

in appeals and the expectation that many more appeals will be filed in the future, an 

additional attorney advisor is needed. The OGC attorneys also perform other duties (such 

as ethics counseling, review of financial disclosure forms, equal employment opportunity 

programming) which will increase as the size of the FMSHRC staff expands. 

C. Case Processing Targets 

Based on a straight-line assumption from past experience, FMSHRC could assume that 

the additional staff resulting from this project would dispose of an additional 2460 cases 

in the 12-month period. However, it is estimated that the settlement rate of targeted 

backlog cases will be higher because the targeted backlog has fewer complex cases. 

Consequently, assuming that the Solicitor’s office files 900 – 1000 additional settlement 

motions during this one year period (resulting in a total of 7,300 – 7,400 settlement 

motions), FMSHRC projects that it should be able to dispose of 3,300 - 3,500 additional 

cases (rather than 2,460).9

 However, this focus on settlements will require transferring 

resources that would have been devoted to hearings and the subsequent preparation of 

decisions. 

With the additional 3,300 – 3,500 dispositions enabled by the increase in staff hired with 

funds from the supplemental appropriation, FMSHRC anticipates that its total number of 

case disposals from July 29, 2010 through July 29, 2011 will be 10,040 - 10,240 cases. It 

is estimated that the general backlog (not limited to the targeted backlog of all matters 

filed between October 1, 2007 and February 28, 2010) at the end of that period will be 

16,680 -16,880. Without the supplemental funding, it is estimated that 6,740 cases would 

have been disposed of in that same 12-month period, leaving a general backlog of 20,180 

cases as of July 29, 2011. 

The six new judges (and to a certain extent the judges who began working for FMSHRC 

in May 2010) will be subject to a learning curve, and the estimated 3,300 – 3,500 

additional dispositions take this into account. It is also important to understand that the 

target could be affected by the Secretary of Labor’s prioritization of cases. 

D. Case Priorities 

FMSHRC’s Office of Administrative Law Judges generally prioritizes cases involving 

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

complaints. As explained below, calendar call cases (involving specific operators or 

specific geographic areas) will also be prioritized. All other cases are prioritized by the 

date the initiating pleading is filed. 

9

 This assumes that most, if not all, of the settlement motions received are fully justified. 

13
 
 

 

DOL has engaged in discussions with FMSHRC to jointly address the prioritization of 

cases. As mentioned previously, the Solicitor’s Office will inform FMSHRC in a manner 

consistent with FMSHRC’s applicable procedural rules of dockets containing priority 

cases (those with large percentages of violations with “significant and substantial” and/or 

“unwarrantable failure” allegations). FMSHRC judges will give priority to such cases, 

with consideration to the Secretary’s prosecutorial discretion and the due process rights 

of the parties and to the adversarial nature of these proceedings. 

E. Administrative Actions to Facilitate Disposal of Cases 

1. Global Settlements and Calendar Calls 

FMSHRC is exploring various techniques to increase the number of dispositions through 

global settlement conferences. Essentially, this concept requires grouping a large number 

of cases by operator, mine, and/or law firm, and issuing an order requiring the Secretary 

and the representative of the operator to appear via teleconference or in person to identify 

those alleged violations that can be settled. The concept also envisions the judge playing 

a more activist role in assisting the parties to reach mutually agreeable settlements. 

Violations that cannot be settled at the conference will be set for trial at a future date 

either before the judge conducting the calendar call or another FMSHRC judge. 

It is anticipated that the resulting settlements will be presented and approved on the 

record during the global settlement conference. The written decisions approving the 

settlements will be issued subsequently and will reference detailed transcripts of the 

settlements. In this way, the written decisions can accommodate the requirements of 

Commission Rule 69 (requiring a decision approving a settlement to be in writing and to 

contain reasons or bases for approving the settlement) and still be processed with 

significantly less time and administrative effort. 

FMSHRC has reemployed a former Chief Judge (who served from 1982 until 2000) as a 

consultant to familiarize the current judges with the concept of global settlement 

conferences as a tool that can more efficiently move a significant number of review and 

penalty cases. The disposition of a significant number of relatively less complex cases 

via this system will balance the expected focus on complicated cases involving 

“significant and substantial” violations and other major cases, which will involve 

substantial time commitments. 

2. Rulemaking 

Simplified proceedings rule 

On May 20, 2010, FMSHRC published in the Federal Register a notice of proposed 

rulemaking regarding simplified proceedings. See 75 Fed. Reg. 28223. The proposed 

rules are intended to simplify and streamline the procedures for handling certain civil 

penalty proceedings before FMSHRC. FMSHRC anticipates that the simplified 

14
 
 

 

proceedings will likely reduce the amount of time between docketing and disposition of 

cases in this category. In addition, the simplified proceedings could significantly reduce 

the time and resource expenditures of both MSHA and mine operators. The comment 

period on the proposed rules ended on June 21, 2010. FMSHRC is reviewing the 

comments and is considering appropriate revisions to be implemented in the final rule. 

FMSHRC anticipates publishing a final rule in December 2010. 

Settlement procedure rule 

On April 27, 2010, FMSHRC published in the Federal Register an interim rule with a 

request for comments regarding penalty settlement procedures. See 75 Fed. Reg. 21987. 

The interim rule sets forth new requirements regarding the filing of settlement motions 

with FMSHRC in all penalty proceedings, except for discrimination proceedings and 

proceedings against individuals. First, the rule requires a party filing a settlement motion 

to submit a proposed order approving settlement. Second, the rule requires the filing 

party to submit the motion and proposed order electronically. The interim rule took 

effect on May 27, 2010, and FMSHRC received comments through June 28, 2010. 

FMSHRC is reviewing the comments and is considering appropriate revisions to be 

implemented in the final rule. It intends to publish a final rule by 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. 

F. Electronic Filing 

FMSHRC has been exploring various electronic products and system designs to replace 

or upgrade its current case management system. FMSHRC aims to adopt an integrated 

product that will allow most cases and documents to be filed, managed, stored and 

tracked internally online and to allow secure access by litigants. An additional goal is to 

increase public access under the Freedom of Information Act and other transparency 

initiatives designed to promote greater public understanding of its activities. 

FMSHRC’s docket office is currently working with an ad hoc electronic filing project 

team to develop a list of requirements that must be addressed in the new system. Once 

reviewed by the project team,10 the Chairman and the Executive Director, the list will be 

shared with the judges and law clerks for feedback. FMSHRC will also coordinate with 

MSHA, as it is both the largest user and the originator of almost all cases, to ensure that 

the approach will be compatible and can readily access data from MSHA’s own system. 

FMSHRC is planning a series of meetings with MSHA in September 2010, to ascertain 

compatibility issues, to determine what limitations must be accommodated by its system, 

and to get feedback from MSHA on the list of requirements. Within a few months, 

FMSHRC plans to identify the items it will include in any request for proposal and a list 

of requirements to evaluate off-the-shelf products if it chooses to pursue this option. 

10 When the new SES staff member is hired, he or she will become an integral member of the project team. 

15
 
FMSHRC has been consulting with other federal agencies using electronic filing systems 

regarding how a new system could be integrated and how to best incorporate it with the 

current case tracking system. The National Labor Relations Board (“NLRB”) extensively 

detailed its own efforts, candidly acknowledging mistakes and noting the risk that almost 

any system may be obsolete as soon as it is purchased. The staff at NLRB emphasized 

that this is a dynamic process that needs to evolve and that would require an on-site 

contractor or employee to oversee the initial development and integration and to adjust 

the system to accommodate changing requirements and technology. NLRB staff 

indicated that it would be possible to develop an integrated e-filing and tracking system 

using the current case tracking system architecture, provided that FMSHRC retained a 

skilled programmer to manage the implementation and transition, and that the contract 

specifications are properly designed to attain key objectives. FMSHRC may visit another 

federal agency in this time and will likely meet again with technical staff at the NLRB. 

In July 2010, FMSHRC staff attended an online demonstration for a commercial, off-theshelf software product that integrates case tracking and file management. Initial review 

of the product shows some promise and advantages. The primary benefit is that a system 

designed to combine case tracking and file management may be easier to use and more 

intuitive. On the other hand, the product might require a complete elimination of 

FMSHRC’s existing case tracking system after extensive efforts to improve it have been 

made. It will continue to consider other stand-alone products. 

FMSHRC is undertaking a more detailed review of the system presented in July and is 

considering two or three alternative off-the-shelf products. Any additional 

demonstrations will be conducted this fall. Depending on the promise any of those 

products offer as a possible stand-alone solution, it will need to do a comparative analysis 

and to select the best representative from among them or to determine that no off-theshelf product is likely to fully meet its needs. This review will include evaluation of 

compatibility with the current case tracking system. If FMSHRC determines that the 

current case tracking system will not be compatible with the solution selected, the 

decision will need to be made early in the process to avoid disruptions to the current 

system. 

The target date for deciding what kind of system to obtain is by the end of 2010. Once 

FMSHRC has selected the type of system it is likely to use and has fully identified the 

contract requirements in coordination with MSHA and solicitors at DOL, it will interview 

and select a technical contractor to oversee and manage the implementation. It expects 

the advertisement and hiring to take place this winter. 

The Commission will submit a report within the next six months that will provide a more 

detailed description of the costs and timelines associated with this project. 

Conclusion 

FMSHRC and DOL submit this joint operating plan with the firm intention to do all in 

their power to dispose of the maximum number of cases in the targeted backlog. They 

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also undertake this project firmly committed to the mandate that enhanced safety and 

health for miners is their foremost imperative. 

In the quarterly progress reports to come, they will provide Congress with coordinated 

and comprehensive updates regarding the principal aspects of the joint operating plan. 

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Attachment A 

Office of the Solicitor FTE Object Class Expenditures 

FMHSRC Backlog 

 Salary & Benefits $7,944,326 

All other Costs $2,930,181 

 SOL Cost for 70 FTEs $10,874,507 

 Contingency Funding $66,243 

Total $10,940,750 

Fully Loaded FTE Cost GS 13/1 MSH Backlog 70 FTE 

Cost FY-10 FY-11 FY-11 

Object Class Per FTE Aug - Sep Oct - Dec Jan - July TOTAL 

Full-time permanent $89,033 $1,038,718 $1,558,078 $3,708,224 $6,305,020 

Personnel benefits $23,149 $270,067 $405,100 $964,138 $1,639,305 

Travel and transportation of persons $1,142 $13,323 $19,985 $47,564 $80,873 

Travel and transportation of things $27 $315 $473 $1,125 $1,912 

Rental payments to GSA $11,113 $129,652 $194,478 $462,856 $786,986 

Communications, utilities, and misc. $1,074 $12,530 $18,795 $44,732 $76,057 

Printing and reproduction $115 $1,342 $2,013 $4,790 $8,144 

Other services $1,948 $22,727 $34,090 $81,134 $137,951 

Other services (Contingency Funding) N/A $0 $66,243 $0 $66,243 

Purchases of goods/services from Govt. $15,595 $181,942 $272,913 $649,532 $1,104,386 

Operation and maintenance of equip. $2,625 $30,625 $45,938 $109,331 $185,894 

Supplies and materials $1,565 $18,258 $27,388 $65,182 $110,828 

Equipment $6,173 $72,018 $108,028 $257,105 $437,151 

Total $153,559 $1,791,517 $2,753,518 $6,395,715 $10,940,750 

2 Months 3 Months 7 Months 

Assumptions Factor 

Pay 2% 1.020 

Non Pay 1% 1.010 

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Attachment B 

Mine Safety and Health Administration 

FY 2010 (Supplemental) Case Backlog Hiring Plan 

MSHA’s initial plan includes hiring an additional 15 employees over the last quarter of 

FY 2010. Of that amount, six will be MSHA clerical personnel (GS-6), and nine will be 

technical advisors (GS-13). Three of the technical advisors will be hired within the 

Metal/Nonmetal activity and six will be hired within the Coal activity. Three technical 

advisors will be located in each of the three SOL regional offices, for a total of nine FTE. 

Coal will not hire additional clerical employees for the backlog reduction project. The 

program will first attempt to use existing clerical staff who will work overtime to 

accomplish tasks related to the additional litigation work. If the work cannot be 

accomplished in this way, the program will hire personnel. Metal/Nonmetal plans to hire 

additional clerical personnel to cover the workload. 

The locations of the employees are shown in the following table. 

Clerical Staff MNMS&H Districts 

Northeast District 1 

Southeast District 1 

North Central District 1 

South Central District 1 

Rocky Mountain District 1 

Western District 1 

Subtotal, MSHA Clerical Staff 6 

MSHA Technical Advisors assigned to 

SOL Regions 

Philadelphia, PA Region 3 3 

Nashville, TN Region 4 3 

Denver, CO Region 7 3 

Subtotal, MSHA Technical Advisors 9 

Total MSHA Hires 15 

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Attachment C 

DOL FMSHRC PROJECT HIRING PLAN 

4th Qtr 1st Qtr 2nd Qtr 3rd Qtr

FY-10 FY-11 FY-11 FY-11

72 

8 5 7 4 2 3 1 0 

20 40 60 80 

100 

FTE 

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Attachment D 

FMSHRC Employment Plan 

GOVERNMENT EMPLOYEES 

2010 current 

additions 

(3.8) 

Total 

FTE's 

Office of the Commission 

Office of the Commissioners 

Chairman 1 1 

Commissioners 4 4 

Counsel 2 2 

Confidential Assistants 2 2 

SES 1 1 

Office of the General Counsel 

General Counsel 1 1 

Deputy GC 1 1 

Administrative Assistant 1 1 

Attorney Advisors 4 1 5 

Office of the Executive Director 

Executive Director 1 1 

Administrative Officer 1 1 

Administrative Specialist 3 3 

IT 1 1 

Total 22 2 24 

Office of the Administrative Law Judges 

Office of the Administrative Law Judges 

Judges 14 6 20 

Law Clerks 9 6 15 

HOD 1 1 

Legal Assistants 9 3 12 

Settlement Counsel 1 1 

Office of Docket 

Management Analyst (supervisory) 1 1 

Management Analyst 1 1 

Legal Assistants 4 4 

Total 40 15 55 

TOTAL FTE 62 17 79 

CONTRACTORS from unobligated balances FY2010 

Office of the Administrative Law Judges 

Office of Docket 

Legal Assistants 7 7 

21
 
 

 

Attachment E 

FMSHRC Hiring Plan 

Position Number of Staff Hired Date of Hiring 

Law Clerks 6 8/30/2010 

Judges 1 8/30/2010 

Position Number of Staff to 

be hired 

Estimated Date 

of Hiring 

SES 1 10/25/2010 

Attorney 

Advisor 1 10/25/2010 

Judges 5 9/11/2010 

Legal 

Assistants 3 10/11/2010 

**The hiring of the 5 other judges is pending dual compensation 

waiver approvals. 

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