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#   How a Case Proceeds before the Commission

## HOW A CASE PROCEEDS BEFORE THE COMMISSION

                    -  Contests of Citations and Orders 
                    -  Contests of Proposed Penalties (Petitions for Assessment of Penalties) 
                    -  Proceedings Before a Judge 
                    -  Complaints for Compensation 
                    -  Complaints of Discharge, Discrimination or Interference 
                    -  Temporary Reinstatement Proceedings 
                    -  Emergency Response Plan Dispute Proceedings 
                    -  Proceedings Before the Review Commission 
                    -  Applications for Fees and Expenses under the Equal Access to Justice Act (EAJA) 

Subpart A of 29 C.F.R. Part 2700, which governs practice before the Commission, filing and service of documents, computation of time, and motion practice, applies to all the proceedings listed above, except as otherwise provided for in the rules specifically governing those proceedings.

### Contests of Citations and Orders

Whenever MSHA believes that a violation of the Mine Act, any health or safety standard, or any regulation has occurred, it must issue a citation which describes the violation and fixes a time within which the operator must abate the violation. In some situations, such as when MSHA believes that conditions pose a danger to miners, MSHA must issue an order removing miners from the mine until hazards are corrected. Whenever MSHA issues a citation or order, it generally proposes a penalty, or fine, as a result of the violation, that the operator is ordered to pay.

The issuance of citations and orders may affect operators, miners, and miners' representatives. Each has different rights to challenge a citation or order. These challenges are brought in a contest proceeding.

For an operator to begin a proceeding, it must file a contest with the Secretary (in the case of a citation or order issued under section 104 of the Act) or with the Commission (in the case of an imminent danger withdrawal order issued under section 107 of the Act) within 30 days after receipt of the citation or order. The notice of contest should set forth the reasons for challenging the order, citation, or the time for abatement in the citation, including all pertinent issues of law and fact and the relief sought from the citation or order. The operator must also attach to the notice of contest a copy of the citation or order that it is challenging.

The operator may file its challenge with the Commission even though it has not yet received a proposed penalty assessment for the violation described in the citation or order that it wishes to challenge. Further, even though an operator has filed a contest of a citation or order, it still must respond to any proposed penalty assessment for the violation described in the citation or order. For more information regarding how to respond to a proposed penalty assessment, see the section entitled, "Contests of Proposed Penalties."

Under section 105 of the Mine Act, miners or a miners' representative may also contest the issuance, modification, or the termination of an order issued under section 104 of the Mine Act. They may also contest the reasonableness of the length of time set for abatement by a citation or modification thereof. In addition, under section 107, a miners' representative may contest the issuance of an imminent danger withdrawal order, its modification, or termination.

The following chart summarizes the procedures for contesting a citation or order. All references to Commission rules are to 29 C.F.R. Part 2700.

### 

#### CONTESTS OF CITATIONS AND ORDERS

                    - The Secretary is authorized to issue a citation or order, pursuant to  section 104 . The Secretary shall issue a withdrawal order requiring an operator to withdraw all persons from an area where an imminent danger exists, pursuant to  Section 107 .
                    - If you wish to file a notice of contest of citations or orders issued under  section 104  of the Act, you must file within 30 calendar days of receipt of the citation or order with the Secretary, who must immediately advise the Commission of the notice. A notice of contest of imminent danger withdrawal orders under  section 107  must be filed with the Commission within 30 calendar days of receipt of the order.
                    - The Secretary must file an answer, responding to the allegations in the notice of contest of a  section 104  citation or order, within 20 calendar days after service of the notice. The Secretary must file an answer, responding to allegations in the notice of contest of a  Section 107  withdrawal order, within 15 calendar days of service of the notice of contest of a withdrawal order.
                    - A contesting party must file any subsequent citation or order that modifies or terminates the citation or order under review within 30 calendar days of its receipt. The notice of contest, unless withdrawn, shall be deemed to challenge the subsequent citation and order. Miners or representatives of miners may obtain review of the issuance, modification or termination of an order issued under  section 104  or the reasonableness of the length of time set for abatement by a citation issued under  section 104  by notifying the Secretary who shall immediately advise the Commission of that notification.

### 

### Contests of Proposed Penalties (Petitions for Assessment of Penalties)

A contest of a proposed penalty is an administrative proceeding before the Commission challenging a civil penalty that MSHA has proposed for the violation contained in a citation or order. When MSHA issues a "proposed penalty assessment," the operator has 30 days to file a challenge to that penalty. The operator files a challenge by following the instructions on the printed form on which MSHA lists the penalty. Generally, the operator should designate which penalty it wishes to challenge (the proposed penalty assessment may include more than one penalty if the operator has been issued multiple citations or orders) and mail the form to MSHA at the address provided.

Even though an operator has filed a contest of a citation or order in the manner described in the section entitled, "Contest of Citations and Orders," it still must respond to any proposed penalty assessment for the violation in the citation or order. The operator must also respond to the proposed penalty assessment even if it is negotiating a settlement with MSHA.

The following chart summarizes the procedures for challenging a proposed penalty assessment. All references to Commission rules are to 29 C.F.R. Part 2700.

### 

#### Contests of Proposed Penalties (Petitions for Assessment of Penalties)

* Note:§ an operator must file a notice of contest to a proposed penalty in order to challenge the underlying citation even if the citation has been contested under § 2700.20.
                    - The Secretary must notify the operator of the violation alleged, the proposed penalty assessment, and that the operator has 30 calendar days to contest the assessment
                    - An operator has 30 calendar days from receipt of the proposed penalty assessment to file a notice of contest of the proposed penalty with the Secretary.
                    - The Secretary must file with the Commission a petition for assessment of penalty within 45 calendar days of receipt of the notice of contest. The petition must list alleged violations and proposed penalties and state that the party against whom a penalty is filed has 30 calendar days to file an answer.
                    - Within 30 calendar days of receipt of the petition for assessment of penalty, the operator must file an answer.
                    - In order to settle a proposed penalty that has been contested, a party must file a settlement motion with the Commission. The operator must also respond to the proposed penalty assessment even if it is negotiating a settlement with MSHA.

### Proceedings before a Judge

The following chart describes the procedures in 29 C.F.R. Part 2700 Subpart G of the Commission’s Rules, which are generally applicable to proceedings before a Judge. However, certain provisions within Subpart G may be superseded by provisions within the Commission’s Rules governing specific proceedings, such as Rule 24, which governs emergency response plan dispute proceedings, and Rule 45, which governs temporary reinstatement proceedings.
                    - A case is assigned to a Judge.
                    - At any time after a case has been filed, affected miners or their representatives may file a written notice of intervention, which shall be granted as a matter of right. Before the start of a hearing, other persons may file a motion to intervene with the Judge, who may allow participation as a matter of discretion.
                    - After an answer has been filed, a party may conduct discovery, including depositions, interrogatories, and requests for admissions, for production of documents, or for inspections.
                    - A Judge may require parties to participate in a prehearing conference for consideration of matters that may aid in the expedition of the hearing or disposition of the case.
                    - All cases are assigned a hearing site and date by order of the Judge. At least 20 calendar days before a hearing, written notice of the hearing and the matters of fact and law asserted are given to parties.
                    - At a hearing, a Judge administers oaths, issues subpoenas, rules on offers of proof and receives relevant evidence, disposes of procedural requests, and otherwise regulates the course of the hearing.
                    - The Judge issues a decision in writing that includes findings of fact and conclusions of law. Unless otherwise provided for, the Judge's jurisdiction in the case terminates when the decision issues.

### Complaints for Compensation

A complaint for compensation may be filed with the Commission by miners entitled to compensation when a mine is closed by certain withdrawal orders issued by MSHA. The purpose of the proceeding is to determine the amount of compensation, if any, due miners idled by the orders. The complaint must be filed within 90 days after the beginning of the period during which the miners are idled. The complaint must include a summary of the facts giving rise to the claim, the period for which compensation is claimed, the total amount of compensation claimed, and a copy of the order closing the mine. The complaint should be mailed to the operator of the mine, and the Commission.

The following chart summarizes the procedures when a complaint for compensation is filed. All references to Commission rules are to 29 C.F.R. Part 2700.

#### 

#### COMPLAINTS FOR COMPENSATION

                    - A complaint for compensation must be filed within 90 days after the beginning of the period during which miners are idled, or would have been idled, by an order closing the mine.
                    - The complaint must include a statement of the facts giving rise to the claim including the period for which compensation is claimed; the total amount of compensation claimed; and a copy of the order of withdrawal or the text of the order.
                    - Within 30 days of service of the complaint for compensation, the operator must file an answer responding to the complaint allegations.

### Complaints of Discharge, Discrimination or Interference

A discrimination proceeding is a case that involves a miner’s allegation that he or she has suffered a wrong by the operator because he or she engaged in some type of activity protected under the Mine Act, such as making a safety complaint. When a miner believes that discrimination has occurred, he or she has 60 days after the operator’s allegedly discriminatory act to file a complaint with the Secretary.

Within 15 days of receiving the complaint, the Secretary must begin an investigation into the matter. Within 90 days of receiving the complaint, the Secretary must inform the miner in writing whether the government believes discrimination has occurred. If the Secretary believes that discrimination has occurred, the Secretary must file a written complaint with the Commission within 30 days of that written determination. The Secretary then proceeds with the case on behalf of the miner.

If the Secretary believes that no discrimination has occurred, the miner may file a complaint on his or her own behalf with the Commission within 30 days of the Secretary’s written determination. The complaint shall include a summary of the facts, including the alleged discrimination, and the relief requested.

The following chart summarizes the procedures when a complaint of discrimination is filed. All references to Commission rules are to 29 C.F.R. Part 2700.

#### COMPLAINTS OF DISCHARGE, DISCRIMINATION OR INTERFERENCE

                    - Within 60 calendar days of a violation, any miner, or representative of miners, who believes he has been discharged, interfered with, or discriminated against in violation of the Mine Act, may file a complaint with the Secretary. The Secretary shall commence an investigation within 15 calendar days of receipt of the complaint. Within 90 calendar days of receipt of the complaint, the Secretary shall notify the miner, or representative of miners, of his determination of whether a violation has occurred.
                    - The Secretary must file a discrimination complaint with Commission, containing a short and plain statement of the facts setting forth the discrimination alleged and the relief requested, within 30 calendar days of the written determination that a violation has occurred.
                    - A discrimination complaint, containing a short and plain statement of the facts setting forth the discrimination alleged and the relief requested, by a miner, representative of miners, or applicant for employment must be filed with the Commission within 30 calendar days of the Secretary's determination that no violation has occurred.
                    - A discrimination complaint must contain a short and plain statement of the facts setting forth the alleged discrimination and the relief requested.
                    - Within 30 calendar days after service of the complaint, the respondent must file an answer responding to each allegation in the complaint.
                    - The Secretary's complaint must include a proposed penalty and supporting reasons; or within 45 calendar days after a Judge’s notification of the Secretary that the Judge has sustained a miner's discrimination complaint, the Secretary must file a proposed penalty.

### Temporary Reinstatement Proceedings

Temporary reinstatement proceedings involve cases in which a miner has filed a complaint with MSHA stating he or she has suffered discrimination and the miner has lost his or her position. If the Secretary determines that the discrimination complaint filed by the miner with MSHA was not frivolously brought, the Secretary may file an application with the Commission for the temporary reinstatement of the miner. The operator who has been charged with discrimination may request a hearing before an Administrative Law Judge after it has received the Secretary's application for temporary reinstatement. However, the scope of the hearing is limited to whether the miner's complaint was frivolously brought. Only later, in a further hearing before the Judge, can the operator challenge whether the alleged discrimination occurred. If a party wishes to challenge the Judge's order on temporary reinstatement, it may file a petition for review with the Review Commission.

The following chart summarizes the temporary reinstatement provisions in Rule 45. All references to Commission rules are to 29 C.F.R. Part 2700.

### TEMPORARY REINSTATEMENT PROCEEDING

                    - The application for temporary reinstatement must state the Secretary’s finding that the miner’s discrimination complaint was not frivolously brought and must be served by the most expeditious means available.
                    - Within 10 calendar days of receipt of the application, the operator may make a request for hearing. If no hearing is sought, the Judge shall issue an order based on his review of the Secretary's application.
                    - A hearing must be held within 10 calendar days of the receipt of the request. The hearing is limited to determining whether the miner's complaint was frivolously brought.
                    - Within 7 calendar days of the close of the hearing, the Judge shall issue an order on application, granting or denying reinstatement.
                    - Within 5 business days of receipt of the order, a party may file a “Petition for Review of Temporary Reinstatement Order” with the Commission.
                    - A response to the petition must be filed within 5 business days following service of the petition, and the Commission must rule on the petition within 10 calendar days after receipt of the response.
                    - If, after an investigation, the Secretary subsequently determines that there is no violation of the Mine Act, the Secretary shall notify the Judge.

### 

### Emergency Response Plan Dispute Proceedings

The Mine Improvement and New Emergency Response Act of 2006 (the "MINER Act"), Pub. L. 109-236, 120 Stat. 493 (2006), which was signed by President George W. Bush on June 15, 2006, amends the Federal Mine Safety and Health Act of 1977, and requires in part that each underground coal mine operator develop and adopt a written emergency response plan ("ERP") no later than 60 days after enactment of the MINER Act. Thereafter, each ERP is subject to periodic review by the Secretary at intervals not to exceed 6 months. The MINER Act also requires the Commission to expedite resolution of disputes over plan contents arising between operators and the Secretary of Labor.

ERP dispute proceedings are cases brought before the Commission when an operator issued a citation issued by the Secretary because the operator has not agreed to include a certain provision in its ERP. Within 2 business days after the Secretary has issued the citation to the operator, the Secretary must send to the Commission and operator a "referral," which triggers a series of filings with the Judge, culminating in a decision that must issue 30 days after the referral.

If a party wishes to challenge the Judge's order in an ERP dispute proceeding, including the Judge's order granting or denying a stay, it may file a petition for review with the Review Commission within 30 days after issuance of the decision or order.

The following chart summarizes the procedures when an emergency response plan dispute is filed under Rule 24. All references to Commission rules are to 29 C.F.R. Part 2700.

#### EMERGENCY RESPONSE PLAN DISPUTE PROCEEDINGS

*The filing of all documents with the Commission under Rule 24 is effective upon receipt.
                    - A referral to the Commission by the Secretary must be filed within 2 business days of the issuance of a citation arising from a dispute between the Secretary and an operator regarding the content of the operator’s emergency response plan.
                    - The operator must file a short and plain statement of its position within 5 calendar days of the filing of the referral.
                    - Any party may request a hearing within 5 calendar days of the referral; the Judge may order a hearing within 10 calendar days of the referral.
                    - The parties must submit all relevant materials regarding the dispute to the Judge within 15 calendar days of the referral
                    - If one is ordered, a hearing must be held within 15 calendar days of the referral.
                    - The Judge must issue a decision within 15 calendar days following submission of materials and testimony.

7. (A). An operator may seek a stay of the inclusion of the disputed provision in the emergency response plan from the Judge within 2 business days following service of the decision.7. (B). The Secretary may file a response to the operator’s request for a stay within 2 business days following service of the operator’s request for a stay.7. (C). The Judge shall issue an order granting or denying the request for a stay within 2 business days after filing of the Secretary’s response.

### Proceedings before the Review Commission

The following chart summarizes the procedures in 29 C.F.R. Part 2700 Subpart H of the Commission’s Rules, which are generally applicable to cases on appeal before the Review Commission.  However, certain provisions within Subpart H may be superseded by provisions within the Commission’s Rules governing specific proceedings, such as Rule 45(f), which governs review of temporary reinstatement proceedings.

Any person adversely affected by an order of the Commission may file a petition to modify or set aside the order with the United States Court of Appeals for the circuit in which the violation occurred or with the Court of Appeals for the D.C. Circuit within 30 days of the issuance of the order.

#### PROCEEDINGS BEFORE THE REVIEW COMMISSION

*Filing a review petition with the Commission is effective upon receipt. 
                    - Any person adversely affected by a Judge’s decision may file a petition for discretionary review  within 30 calendar days of the decision.  Each issue shall be plainly and concisely stated and supported by the record and legal authorities.  Review by the Commission, which is discretionary, requires an affirmative vote of at least two Commissioners within 40 calendar days of the decision.
                    - The Commission may vote to grant review on its own motion within 30 calendar days of the Judge’s decision.
                    - Within 30 calendar days of the Commission’s direction for review, a person may file a motion to intervene in a proceeding.  Intervention is subject to the Commission’s discretion.  A person may file a motion to participate as an amicus curiae after the Commission has directed a case for review.
                    - Within 30 calendar days of the Commission's direction for review, a party’s opening brief must be filed.  A response brief must be filed within 30 days of service of the opening brief, or within 20 calendar days if review is on the Commission's own motion.  A petitioner may file a reply brief within 20 calendar days after service of the response brief.
                    - A party’s request for oral argument must be filed by separate motion no later than the time for filing its opening or response brief.
                    - A petition for reconsideration must be filed within 10 business days of the Commission’s decision, and any response must be filed within 10 business days of service of the petition.

### Applications for Fees and Expenses under the Equal Access to Justice Act (EAJA)

The Equal Access to Justice Act, 5 U.S.C. § 504 (EAJA), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to administrative proceedings before the Commission.  Generally, only “small” businesses are eligible for EAJA awards.  In the case of a “prevailing party,” eligibility is based on number of employees and net worth, which are established in the Commission’s regulations.  29 C.F.R. § 2704.104(b).  For purposes of an award to a non-prevailing party, eligible applicants are “small entities,” which is determined by the annual-receipts and number-of-employees standards in regulations of the Small Business Administration.  29 C.F.R. § 2704.104(c). 

An eligible party may receive an award when it prevails over the Department of Labor’s Mine Safety and Health Administration (MSHA), unless the position of the Secretary of Labor was substantially justified, or special circumstances make an award unjust.  In addition, a non-prevailing eligible party may receive an award if it has been subject to a demand from the Secretary that is substantially in excess of the decision of the Commission and unreasonable, unless the applicant party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. 

The following chart summarizes the procedures when an EAJA application is filed.  All references are to 29 C.F.R. Part 2704. 

#### Applications for Fees and Expenses under the Equal Access to Justice Act (EAJA)

                    - Within 30 calendar days of a final decision, an applicant must file with the Chief Administrative Law Judge an application which identifies the underlying proceeding for which an award is sought and the amount of fees and expenses.
                    - (A). An applicant who has prevailed in a Commission proceeding must identify the position of the Secretary that the applicant alleges was not substantially justified, describe its type of business, state the number of employees, and submit a detailed exhibit showing its net worth at the time of the underlying proceeding. 
                    - (B).An applicant who has not prevailed in a Commission proceeding but who has been subject to a demand from the Secretary must show that the Secretary’s demand is substantially in excess of the decision of the Commission and further allege that the demand is unreasonable when compared with the decision; the applicant must show that it is a “small business” as defined by  5 U.S.C. § 601(6) . 
                    - The Secretary must file an answer to the application within 30 calendar days of service of the application, or the Secretary and the applicant may jointly file an intent to negotiate a settlement which shall extend the time to file an answer by 30 days.
                    - The applicant may file a reply to the answer within 15 calendar days of service of the answer.
                    - The Judge must issue a decision on the application 75 calendar days after the completion of proceedings on the application.

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