**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**721 19th Street, Suite 443**

**Denver, Colorado, 80202-2500**

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

**Fax: (303) 844-5268**

** **

 
| SECRETARY  OF LABOR

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA),

                            Petitioner

               v.

 

CACTUS  CANYON QUARRIES INC,

                            Respondent                                                                           |   |   | CIVIL PENALTY PROCEEDING

 

Docket  No. CENT 2022-0010-M

A.C. No.  41-00009-542457

 

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

 

**ORDER GRANTING MOTION TO STAY, INPART**

**ORDER CONCERNING MOTION TO COMPELANSWERS TO DISCOVERY**

 

Before: Judge Manning

 

This case is before me upon apetition for assessment of a civil penalty under section 105(d) of the FederalMine Safety and Health Act of 1977. On March 21 the Secretary filed a Motionfor Stay (“Sec’y Mot.”). Subsequently, on April 19, Respondent filed a Responseto the Secretary’s Motion for Stay and its own Motion to Compel Answers to Interrogatoriesand Production Requests (“Cactus Canyon Resp.”). The Secretary then filed anobjection to Cactus Canyon’s motion to compel (“Sec’y Obj.”). For the reasonsset forth below, the Secretary’s motion for stay is granted, in part. Respondent’smotion to compel is denied but the parties are ordered to continue working ondiscovery, as described below, so that discovery can be completed expeditiously.A preliminary jurisdictional issue must be addressed before reaching theseissues. I am discussing this jurisdictional issue because both parties raised itin their filings.

 

A.   CommissionJurisdiction

 

OnDecember 1, 2021, the Commission’s Chief Administrative Law Judge issued anorder granting the Secretary’s request for an extension of time to file thePetition for Assessment of Penalty in this case.[1]Both the Secretary’s motion and Cactus Canyon’s response make reference to theappeal Cactus Canyon filed to the Fifth Circuit Court of Appeals regarding the ChiefJudge’s December 1, 2021 order.[2] In its briefto the Fifth Circuit, as well as in its response

to theSecretary’s motion for stay, Cactus Canyon asserts that Commission jurisdictiondoes not attach in a civil penalty case until the Secretary files his Petitionfor Assessment of Penalty under Commission procedural Rule 28. 29 C.F.R. § 2700.28. Consequently, it argues, the ChiefJudge did not have jurisdiction to issue an order granting the Secretary’srequest for an extension of time to file the penalty petition in this case. CactusCanyon’s assertion is not correct. Commission jurisdiction attaches in a civilpenalty case at the time the mine operator files its Notice of Contest ofProposed Penalty Assessment under Commission Procedural Rule 26. 29 C.F.R. §2700.26. In this case, counsel for Cactus Canyon signed the Notice of Conteston October 4, 2021, and it was mailed to the Mine Safety and HealthAdministration (MSHA) via USPS 2-day priority delivery on October 5, 2021. TheCommission’s jurisdiction over this case began when this notice of contest wasfiled by counsel for Cactus Canyon in October 2021.

 

TheCommission has long held that once a mine operator contests a citation, neitherthe citation nor the associated penalty can be compromised by the partieswithout the consent of the Commission. The Commission summarized the law inthis regardin *Black BeautyCoal Co.*, 34 FMSHRC 1856, 1862 (Aug. 2012), as follows: 

 

As the Commission has long recognized, after “anoperator contests the Secretary's proposed assessment of penalty, ... *Commission*jurisdiction over the matter attaches.” *Sellersburg Stone Co.*, 5 FMSHRC287, 291 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) (emphasis inoriginal). It is clear that the Commission's jurisdiction attaches to aproposed penalty after it has been contested due to the language of section110(k), which specifies that “[n]o proposed penalty which has been *contested*before the Commission under section 105(a)” shall be settled without theapproval of the Commission. 30 U.S.C. § 820(k) (emphasis added).

 

When an operator files its notice of contest with MSHA’sCivil Penalty Compliance Office in Arlington, Virginia, detailed informationabout the notice of contest and the particular citations contested istransmitted to the Commission’s electronic case management system (“eCMS”) withina short period of time.[3] The Commissioncreates a docket number which is transmitted to MSHA. If a case is settled afterthe operator files its notice of contest but before the penalty petition isfiled, a Commission administrative law judge must still review the proposedsettlement for compliance with the terms of section 110(k) of the Mine Act. 30U.S.C. § 820(k). Thus, established law provides that the Commission’sjurisdiction commences in a civil penalty case at the time the mine operatorfiles its notice of contest of the proposed penalty assessment. 

 

B.   Motion for Stay

 

TheSecretary asks that this case be stayed “while the Fifth Circuit Court ofAppeals resolves Cactus Canyon’s appeal of a procedural order.” Sec’y Mot. 1. Heargues that “it makes no sense for the parties to continue litigating this casewhile there is a pending appeal that could result in the case’s dismissal.” *Id*.at 2. The Secretary maintains that because the Commission’s administrativerecord has already been filed with the Fifth Circuit, section 106(a)(1)provides that the court of appeals has “exclusive jurisdiction of theproceeding.” Sec’y Obj. 1 (citing 30 U.S.C. 816(a)(1)). He also asserts thatstaying the case will not prejudice Cactus Canyon. Sec’y Mot. 2.

 

Inresponse, Cactus Canyon argues that the Secretary’s Motion for Stay “is an attemptto breathe life into the Outlaw Order.” Cactus Canyon Resp. 2. It goes on toargue that I have “no jurisdiction to consider any matter set forth in theCommission’s Certified Index of Administrative Record to the Fifth Circuit.”[4]*Id*.  Finally, counsel argues that the “Secretary’s Motion to Stay seeksa bond where none is possible.” *Id*. 

 

Forgood cause shown, the Secretary’s Motion for Stay is **GRANTED**, in part,to****the extent that I will not set the case for hearing during thependency of the stay. Cactus Canyon seemingly asks me to ignore the fact thatit filed an appeal of the Chief Judge’s December 1, 2021, order granting theSecretary an extension of time to file the petition for penalty. The casebefore me can only progress so far while this appeal is pending. Consequently,staying the case is prudent and will not prejudice Respondent.

 

C.   Motion toCompel Answers to Discovery.

 

            CactusCanyon states that it served discovery upon the Secretary on February 11, 2022,and that the Secretary has not responded despite repeated attempts to secureresponses. It contends that the Secretary filed its motion for stay to avoidhaving to respond to discovery. 

 

            Asstated above, the Secretary objects to the motion to compel and maintains that“[f]or procedural simplicity, and to avoid this Court’s conducting litigationinconsistent with the Fifth Circuit’s disposition of this case, this Courtshould stay the case . . . and deny Respondent’s motion to compel.”[5] Sec’y Obj. 1-2.

 

            Forgood cause shown, the motion to compel is **DENIED**to the extent that, atthis time, I am not ordering the Secretary to respond by a certain date. Consistentwith my analysis above, I believe it is likely the Fifth Circuit will denyCactus Canyon’s motion to dismiss and will remand the case back to theCommission. Accordingly, the parties should be prepared to resume activelitigation of this matter as soon as the stay is lifted. The Secretary is **ORDERED**to begin gathering the information necessary to respond to Cactus Canyon’sinterrogatories and prepare draft answers. The Secretary is also **ORDERED**to begin gathering the documents requested by Cactus Canyon’s request for theproduction of documents. Finally, the Secretary is **ORDERED** to begin draftinghis own interrogatories and document requests, if any, for prompt service toCactus Canyon if the case is remanded to the Commission.

 

            Ifthe case is remanded to me, I intend to set it for hearing and order theparties to quickly complete discovery.[6] The parties would be wise to usethis time to move discovery along.

 

 

 

/s/Richard W. Manning 

                                                                        RichardW. Manning 

                                                                        AdministrativeLaw Judge

 

 

 

Distribution(First Class Mail and email):

 

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

 

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

 

 

RWM

 

 

 

 

 

 

----

[1]Respondent’scounsel refers to this order of the Chief Judge as the “Outlaw Order.” Cactus Canyon Resp. 1.

 

[2]CactusCanyon filed its appeal of the Chief Judge’s order to the Fifth Circuit on orabout January 14, 2022, after the Commission denied its petition fordiscretionary review on January 4, 2022.Cactus Canyon filed its brief to the FifthCircuit on April 18, 2022.

[3]Indeed, allinformation contained within a contested citation is transmitted to theCommission at this time, including the safety standard cited, the descriptionof the alleged violation written by the inspector, the inspector’s determinationsas to gravity, negligence, and significant and substantial (S&S), as wellas the penalty proposed by the Secretary.

[4]This indexincludes everything filed with the Commission or issued by the Commission ineCMS between November 28, 2021, and January 4, 2022.

 

[5]Nevertheless,the Secretary makes clear that he “believes that the Fifth Circuit lackssubject-matter jurisdiction over Cactus Canyon’s appeal and has filed a motionto dismiss . . .” Sec’y Obj. 1.

[6]This caseinvolves three non-S&S citations and a total penalty of $375.