Third Quarterly Progress Report:

Targeted Caseload 

Backlog Reduction

Submitted by:

The Federal Mine Safety and Health Review 

Commission

And

The United States Department of Labor

June 28, 2011
Introduction

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

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

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

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

period of January 29, 2011 through April 28, 2011. 

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

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

received an appropriation of $3,800,000, both of which are available for one year from 

the date of enactment (July 29, 2010 through July 28, 2011) for the purpose of reducing 

the existing case backlog before the Commission, and other purposes related to mine 

safety. 

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

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

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

Health Administration (MSHA) to be used in the backlog reduction effort and for the 

investigation of the Upper Big Branch Mine disaster. 

In addition, section 1807 of Title VIII of the full-year Continuing Resolution enacted on 

April 15, 2011, states: 

Notwithstanding section 1101, the level for “Department of Labor, Mine Safety 

and Health Administration, Salaries and Expenses” shall be $363,843,000, of 

which up to $3,000,000 shall be available to the Secretary of Labor to be 

transferred to “Departmental Management, Salaries and Expenses” for activities 

related to the Department of Labor’s caseload before the Federal Mine Safety and 

Health Review Commission . . . . 

Pursuant to that authority, MSHA is utilizing approximately $750,000 for its case 

backlog reduction project activities and is transferring $2,000,000 to the Departmental 

Management account to be used by SOL for the continued funding of the case backlog 

reduction project through September 30, 2011. This additional funding will enable SOL 

to continue operating the project through September 30, 2011, and to implement certain 

enhancements, including the addition of a number of temporary FTE to handle a greater 

number of cases before the Commission. The implementation of many of these 

enhancements is planned to be initiated during the current quarter of the project. 

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FMSHRC Quarterly Activities

Obligations of Supplemental Funds and Additional Staffing for FMSHRC: 

During the period of January 29 through April 28, 2011, the Commission obligated 

$1,299,673 of supplemental funding, of which $593,229 was for salaries and benefits, 

and $706,444 for operational expenses, travel, office space, supplies, equipment, and 

contract staff. 

As of April 28, 2011, the Commission had obligated a total of $3,511,201 from its 

supplemental appropriation. 

Case Processing and Targeted Backlog Case/Citation Dispositions: 

The targeted backlog addressed by these quarterly reports is made up of the 10,424 

penalty cases pending at the Commission on July 29, 2010 that had been contested on or 

after October 1, 2007 through February 28, 2010.1

 From January 29, 2010 through April 

28, 2011, FMSHRC disposed of 1,850 targeted backlog cases involving 11,190 citations. 

Case Priorities: 

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

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

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

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

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

SOL team leaders identified 547 of these priority backlog cases. As of April 28, 2011, 

325 of those cases were assigned to a judge, 203 had been disposed of, and 19 remained 

unassigned. 

Administrative Actions to Facilitate Disposal of Cases:

1. Global Settlements and Calendar Calls: 

FMSHRC is continuing to utilize measures such as global settlement conferences and 

calendar calls to dispose of cases expeditiously. Both global settlement conferences and 

calendar calls involve more than one docket; however, they differ in a number of ways. 

Global settlement conferences are meetings presided over by an ALJ, scheduled for the 

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

via conference call, and those cases that do not settle are scheduled for hearing at a future 

date. During the reporting period, 15 global settlement conferences were scheduled, 

 

1

 Some of those cases are more complex, and therefore DOL did not assign them to supplemental staff. 

However, the agencies have agreed that all penalty cases contested during the identified time period would 

be included in the targeted backlog, regardless of where they are assigned in DOL. 

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involving 120 cases and 680 citations. As of the end of the period, 105 of these cases, 

involving 584 citations, had reached settlement.

Calendar calls are hearings scheduled in one location sequentially during a specified 

timeframe, generally one or two weeks. During this reporting period, 2 calendar calls 

were scheduled, involving 5 cases and 14 citations. As of the end of the quarter, all of 

those cases were still pending. However, since these calendar calls are all scheduled for 

later in the year, it is likely that some of the cases involved will be disposed of prior to 

their scheduled hearing dates 

2. Rulemaking: 

Simplified proceedings rule: On December 28, 2010, the Commission published in the 

Federal Register a final Simplified Proceedings rule. See 75 Fed. Reg. 81459. The final 

rule sets forth procedures that simplify and streamline the processing of certain civil 

penalty proceedings. Although the administrative processes in these cases are 

streamlined, hearings remain full due process hearings, as they are under conventional 

procedures. The final rule became effective on March 1, 2011, and the first cases eligible 

for this streamlined process have been identified. 

Settlement procedure rule: On November 30, 2010, the Commission published in the 

Federal Register a final rule on settlement procedures. See 75 Fed. Reg. 73955. The 

final rule took effect on December 30, 2010. Under the rule, parties who file motions to 

approve settlement are required to submit a proposed decision approving settlement with 

the motion. The final rule generally requires the filing party to submit the motion and 

proposed order electronically. The goal of the new rule is to make the settlement of cases 

more efficient and less time-consuming for Commission judges. 

3. Electronic Filing: 

The Commission submitted a report to Congress on March 23, 2011, describing the 

options, costs and timelines associated with this project. Ultimately, a new or upgraded 

system will permit electronic filing, fully electronic case files, electronic assignment and 

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

The Commission’s FY 2012 Congressional Budget Justification includes $1 million in 

FY 2012 to procure and implement e-case filing and management. In the interim, the 

Commission is working to identify pilot projects to increase the use of technology in case 

handling. 

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DOL Quarterly Activities

Allocation of the DOL Appropriation:

Between January 29, 2011 and April 28, 2011, DOL records reflect that SOL obligated 

approximately $3,410,218 for this project, of which $2,414,632 was for staff salaries and 

benefits, and $995,586 was for office space, equipment and supplies, and other 

operational expenses. 

Between January 29, 2011 and April 28, 2011, MSHA obligated approximately $717,000 

for work on cases in the targeted backlog, of which $641,000 was for staff salaries and 

benefits, and $76,000 was for operational expenses; and approximately $1,588,000 in 

supplemental funding for the Upper Big Branch mine disaster accident investigation and 

internal review. Additional charges for the investigation are expected to be recorded 

before the end of the current calendar quarter. 

Additional Staffing for SOL and MSHA:

The five new offices SOL established during the first quarter of this project to handle the 

backlog reduction litigation (Nashville, Denver, Atlanta, Philadelphia, and Arlington, 

Virginia) have continued to be fully operational through this quarter. Approximately 83 

term and temporary employees were on board as of April 28, 2011. The vast majority are 

attorneys. These on board employees include the additional 6 FTE referenced in the 

second quarter progress report. Staffing distribution is as follows: Arlington: 10.5; 

Atlanta: 10; Nashville: 19; Denver: 25; Philadelphia: 15.5; as well as 1 staff in Dallas, 1 

in SOL’s Mine Safety and Health Division, and 1 administrative staff in SOL’s national 

office. The term and temporary FTE usage rate (defined as one full-time staff person for 

one full year) in the project for the period from July 29, 2010 through April 28, 2011 is 

about 71.85. 

Because of the additional funding that SOL is receiving through the transfer of 

$2,000,000 from MSHA (as discussed above), it is contemplated that 15-20 additional 

temporary staff will be hired across most of the SOL backlog offices in the immediate 

future, which will raise the effective FTE usage rate for the project to about 92.33 FTE, 

pending further attrition. 

In addition, as reported in the second quarterly progress report, SOL is ensuring the 

continuing concentration of its existing regional staff on disposition of these targeted 

backlog cases by applying up to $1,100,000 of SOL’s FY 2010 supplemental backlog 

reduction funds, as well as some of the additional $2,000,000 in FY 2011 funds, to the 

ongoing targeted backlog reduction work of those staff. 

SOL Litigation Activities to Address Backlog Cases:

The focus of backlog project offices solely on FMSHRC backlog cases has permitted 

concentrated use of litigation tools. Offices have worked closely with MSHA technical 

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advisors (TAs) to research and prepare backlog cases for settlement conferences and 

trials. Project managers have used a variety of litigation strategies for managing the 

workload, including motions for prompt trials, strategic pretrial motions and motions for 

summary judgment. Both formal and informal discovery mechanisms, including 

depositions, have been used by attorneys to develop the record. In some matters, 

penalties have been negotiated above the level proposed by the agency. In one such case, 

MSHA inspectors – after securing the operator’s surface phones to prevent advance 

warning of the inspection -- observed violations of the methane and dust control plan, and 

MSHA proposed a cumulative penalty of $34,352. After backlog attorneys conducted 

discovery, including an expert witness deposition, and prepared the case for trial with 

help from the inspectors, the operator agreed to settlement with an increased civil penalty 

of $70,000. 

The fact that the case backlog reduction project includes thousands of cases has enabled 

SOL backlog project attorneys to leverage the volume of cases assigned to backlog 

project offices to reach resource-saving global settlements. For example, backlog offices 

have consolidated certain cases involving a single operator and assigned those matters to 

a single backlog attorney, filed motions requesting assignment of cases involving the 

same operator to one judge, requested settlement conferences, and discussed settlement 

of large numbers of cases with a single opposing counsel. Settlement of multiple cases 

involving one major coal operator is a good example of the success of this effort. SOL 

case backlog reduction project attorneys in Philadelphia are working with the operator’s 

corporate safety director to settle the vast majority of the dockets involving the operator 

within the scope of the entire backlog project. This settlement covers 13 mines and 

encompasses approximately 163 dockets, and over 1,000 citations. In a similar 

settlement, the Nashville backlog project office consolidated 20 backlog dockets 

involving another operator with 20 recent dockets that were still assigned to the MSHA 

district office, and the operator agreed to a proposed settlement of $1,400,000 for the 

combined case. 

Backlog project attorneys have identified legal and policy issues in certain backlog cases 

and developed strategic recommendations for improved future enforcement. For example, 

in one case backlog attorneys recommended that one aspect of an MSHA handbook could 

be clarified to facilitate mine operator compliance and enforcement. In another case, the 

backlog project office’s careful review revealed that the Army and a government 

contractor had been disposing of World War II munitions at three mines. The backlog 

project alerted MSHA to this situation and – in settling the case – included a nationwide 

notification requirement under which the contractor must now inform MSHA of the 

presence of Army munitions at any coal mine at which it has a contract. 

MSHA Activities:

The MSHA staff distribution for the targeted backlog is as follows: 

 2 Coal technical advisors (TAs) in Philadelphia 

 1 Coal TA in Arlington 

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1 Coal and 1 M/NM TAs in Atlanta 

 1 Coal TA in Nashville 

2 Coal and 1 M/NM TAs in Denver 

In addition, MSHA is adding staff to assist with the growing number of non-targeted 

backlog cases. As of April 28, 2011, 5 technical specialists have been hired to assist 

conference litigation representatives on non-targeted backlog cases in Coal Districts 2, 4, 

5 and 6, and twelve clerical staff were hired to work in the Metal and Non-metal districts 

to assist conference litigation representatives, including supporting the orderly transfer of 

metal-non-metal cases to the backlog project.2

 

The costs of the UBB investigation are not only higher than anticipated due to the length 

and scale of the investigation, but have now extended beyond the December 31, 2010 

date in the original plan. As reported in the Second Quarterly Progress Report, MSHA 

redirected $2.1 million from planned backlog activities to help offset costs of the Upper 

Big Branch investigation. MSHA also expanded the use of supplemental funding to 

make available approximately $1.1 million to increase resources to address the rapidly 

growing number of non-targeted backlog cases contested after February, 2010. The $1.1 

million is being used to fund overtime for the Conference and Litigation Representatives 

(CLRs) and inspectors, hiring annuitants to serve as Technical Specialists assisting CLRs 

on cases, and additional clerical support for CLRs in Metal and Nonmetal. 

DOL Case Processing Activities:

Approximately 67,300 citations comprise the total targeted backlog of all citations 

contested between October 1, 2007 and February 28, 2010. As was reported in our first 

and second quarterly reports: 

 From July 29, 2010 through October 28, 2010, the project resulted in the 

disposition of 1,901 cases involving 8,901 citations. 

 From October 29, 2010 through January 28, 2011, the project resulted in the 

disposition of an additional 1,206 cases involving 7,001 citations. 

As is reflected in the FMSHRC portion of this report above, between January 29, 2011 

and April 28, 2011, SOL and MSHA disposed of 1,850 additional cases and 11,190 

additional citations, for a total of 4,957 cases and 27,092 citations during the first three 

quarters of this project. Therefore, assuming the rate of disposition achieved during the 

third quarter of this project continues, approximately 6,600 cases and 36,000 citations 

will have been disposed of by July 29, 2011, which is about 63 % of the total initial 

targeted case backlog of 10,500 cases, and about 54% of the total number of 67,300 

citations. With the passage of the full-year Continuing Resolution for FY 2011, SOL and 

MSHA’s backlog project is funded through September 30, 2011, and the project remains 

on track to exceed our expectations for disposition of cases and citations. 

 

2

 Six of these clerical staff were hired to assist with the transfer of targeted backlog cases to SOL. They 

are now supporting CLRs in their work on non-targeted backlog cases. 

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Through March 31, 2011, which represents the first eight months of the project, SOL 

attorneys and MSHA CLRs recovered over $36 million in penalties in targeted backlog 

cases with final FMSHRC decisions. Additionally, SOL backlog attorneys have taken 

the legal actions necessary to reach settlement agreements that should result in the 

recovery of additional penalties of over $7 million following the Commission’s 

disposition of the settlement motions filed by SOL. 

Between March 1, 2010 and April 28, 2011, there were 10,067 new penalty cases 

docketed, including 51,152 contested citations. In about 14 months, a time frame 48% as 

long as the 29 month time frame of the targeted backlog (October 1, 2007-February 28, 

2010), approximately 54% as many cases and 49% as many citations were contested. 

This suggests that the rate of increase in cases and citations has continued during the 

period since February 28, 2010.3

 Therefore, MSHA continues to devote a larger portion 

of the available backlog reduction funding to addressing disposition of the non-targeted 

backlog, and SOL is ensuring that the entire $400,000 in funding for non-targeted 

backlog cases is expended. 

SOL and MSHA, working with the DOL Office of the Chief Evaluation Officer, have 

contracted for an evaluation study of the MSHA Litigation Backlog Project (MLBP). 

The purpose of the study is to evaluate the best practices and the lessons learned from the 

MLBP with a focus on identifying practices and procedures above and beyond simple 

staff hours that can be applied on an on-going basis to MSHA litigation. 

Conclusion

The Commission and DOL continue to make significant strides in the ongoing effort to 

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

and hired additional staff to tackle the backlog. Despite the transaction time involved in 

starting new offices and hiring new employees, significant progress was made on 

disposition of cases in the targeted backlog. 

In the second and third quarters, the project has continued in full and robust operation, 

has achieved a successful level of productivity, and is producing further significant 

reductions in the targeted backlog. DOL also is undertaking vigorous actions to ensure 

effective use of the additional FY 2011 funding for the continuation of the project to 

reduce the backlog through September 30, 2011. However, both the Commission and 

DOL also continue to be concerned that the number of citations being contested since the 

February 28, 2010 – the end of the targeted backlog period – is resulting in an increasing 

overall caseload, despite efforts by the Commission and the Department to address both 

the targeted and non-targeted backlog. 

 

3

 There were 18,373 cases with 104,295 violations contested between October 1, 2007 and February 28, 

2010. 

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APPENDIX TO THIRD QUARTERLY REPORT 

ON CASE BACKLOG REDUCTION

During the third quarter of the Supplemental Appropriation, FMSHRC disposed of 3,032 

cases. As reported in this Quarterly Report, 1,850 of these dispositions were from the 

targeted backlog. The remaining 1,182 cases were either non-targeted cases in the 

FMSHRC inventory as of July 29, 2010 or cases filed since July 29, 2010. 

FMSHRC Case Dispositions

During Supplemental Quarters

1901

1206

1850

418

718

1182

Targeted

Backlog Cases

Other Cases

Supplemental Quarter 2

Supplemental Quarter 1

Supplemental Quarter 3

2,319

1,924

3,032

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The chart below illustrates FMSHRC’s case inventory as of the passage of the FY 2010 

Supplemental, and at the end of each supplemental quarter. As a result of the high 

number of dispositions during the third quarter, the total number of cases pending before 

the Commission at the end of this quarter was lower than at the end of the second quarter. 

Nevertheless, as of April 28, 2011, the inventory of cases before the Commission was 

higher than it was when the Supplemental Appropriation was passed, due to the 8,378 

cases that had been filed subsequent to July 29, 2010. Two hundred seventy (270) of 

these newly-filed cases had been disposed of by the end of this quarter. 

FMSHRC Case Inventory

at passage of Supplemental Appropriation

and at end Supplemental Quarters

10424

8523

7317

5468

7167

6759

6071

5120

3304

5747

8108

29-Jul-10 28-Oct-10 28-Jan-11 28-Apr-11

Cases Filed

After 29-Jul-10

Other Cases

in 29-Jul-10

Inventory 

Targeted

Backlog

17,591

18,586 19,135 18,696

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

include contest and other types of cases, as well as penalty cases.

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