JOINT REPORT ON BACKLOG 

REDUCTION

Submitted by:

The Federal Mine Safety and Health Review 

Commission

And

The United States Department of Labor

September 30, 2015
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Introduction

In Senate Report No. 113-71 (July 11, 2013) of the Senate Committee on Appropriations, 

the Secretary of Labor (DOL) was directed, in conjunction with the Federal Mine Safety 

and Health Review Commission (FMSHRC) to:

Provide a joint report to the Committee on Appropriations of the House of 

Representatives and the Senate for reducing the number of pending cases and 

average case processing times to appropriate levels by the end of fiscal year 2015. 

The report should fully explain how such levels were determined. It should also 

establish goals and metrics for determining when the levels will be achieved and 

how they will be maintained in the future.

This is the report of FMSHRC and DOL to the Senate and House Appropriations 

Committees on reducing the number of cases in contest, as well as the average case 

processing times, to appropriate levels by the end of fiscal year (FY) 2017. The report 

outlines the work that FMSHRC and DOL (through the Mine Safety and Health 

Administration (MSHA) and the Solicitor of Labor (SOL)) have done to reduce the 

number of pending cases. This includes the original “targeted backlog” (active cases 

contested between October 1, 2007 and February 28, 2010) and the “overall caseload” 

(the total number of cases currently pending before FMSHRC, including the “targeted 

backlog”) through September 30, 2014; the work we are doing to reduce the number of 

pending cases; and DOL’s and FMSHRC’s separate projected goals for overall caseload 

and processing times for contested cases by the end of FY 2017.

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

Act, 2010” (“Supplemental”), DOL received an appropriation of $18,200,000 and 

FMSHRC received an appropriation of $3,800,000, both of which were 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 FMSHRC, and other purposes related to mine 

safety. In their Joint Operating Plan to Congress, dated September 7, 2010, FMSHRC

and DOL identified citations that were contested on or after October l, 2007, through 

February 28, 2010, and defined that group of contested cases as the targeted backlog. 

This “targeted backlog” (which was a subset of the total trial level inventory) was made 

up of 10,424 penalty cases involving 64,267 citations. 

Congress first appropriated these funds in the 2010 Supplemental Appropriations Act. 

Starting in FY 2012, Congress authorized the use of DOL and FMSHRC appropriations

to fund their backlog activities. FMSHRC and DOL have made sound investments with 

the funding provided by the Congress, making significant strides in the ongoing effort to 

reduce the number of pending contested violations. The agencies developed a joint 

operating plan to attack the targeted backlog. The plan included the use of specialized 

litigation teams (with initially 89 term and temporary SOL employees (74 attorneys) who 

were hired in 2010-2011) to staff the MSHA Litigation Backlog Project (Backlog

Project) and provide legal advice, conduct litigation and participate in global settlements 

to resolve some cases. These SOL employees worked hand-in-hand with the MSHA 
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technical advisors who provided expert mining knowledge concerning issues raised in the 

cases, and case settlement authority for MSHA.1 FMSHRC increased the number of 

Administrative Law Judges from nine to 20 using a combination of additional permanent 

and senior Judges, part-time senior Judges, and loaner Judges. A law clerk and a legal 

assistant (total of 18 additional employees) were provided for each Judge. The Docket 

Office was expanded by seven contractor positions to provide more efficient receipt and 

processing of cases. Using strategies outlined below, DOL and FMSHRC have worked to 

reduce both the number of pending cases to a steady state and the length of time it takes 

to resolve contested cases.

Backlog Reduction and Case Processing Times

Targeted Backlog

MSHA data shows that by the end of FY 2011, the first full year in which the Backlog 

Project was operational, the “targeted backlog” was reduced from 10,614 penalty cases 

involving 64,267 citations to 2,750 cases involving 19,728 citations. The reduction of 

7,674 penalty cases and 44,539 citations was over twice the number predicted in 

MSHA’s operating plan. In FY 2012, the “targeted backlog” was reduced to 876 cases 

involving 5,247 citations; and in FY 2013, levels decreased to 317 cases involving 1,587

citations. These reductions were accomplished in a little over 3 years. As of the end of 

FY 2014, 132 cases involving 735 citations remained in the “targeted backlog,” a 99

percent reduction from the beginning of the Backlog Project. The “targeted backlog” did 

not include new citations issued by MSHA, which operators continued to contest. The 

table below outlines the progress in reducing the “targeted backlog.”

Reductions in “Targeted Backlog”

As of: Number of 

Cases

Number of 

Citations

March 31, 2010 12,307 73,821

September 30, 2010 9,029 57,817

September 30, 2011 2,750 19,728

September 30, 2012 876 5,247

September 30, 2013 317 1,587

September 30, 2014 132 735

Targeted Backlog

Source: MSHA Standardized Information System

Overall Caseload

 

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See the previous Joint Reports on Backlog Reduction submitted by FMSHRC and DOL. 

Since the end of FY 2013, SOL has maintained its MLBP staff at 44 temporary and term

FTE working on the project, along with 6 MSHA technical advisors.
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By the end of FY 2010, FMSHRC statistics show that the overall caseload rose to a high 

of over 18,000 cases. With backlog reduction resources provided by Congress, and along 

with other efforts, DOL and FMSHRC have continued to reduce the overall caseload. 

At the end of FY 2011, the caseload had been reduced to fewer than 16,000 cases; in FY 

2012 to about 13,000 cases; and in FY 2013 to about 7,600 cases. By the end of FY

2014, the overall caseload was at about 6,200 cases.

FMSHRC data also indicates the average days from contest to decision peaked at 546

days in FY 2011, declining to 459 by the end of FY 2014.

The following chart shows the overall caseload and case processing times since the 

beginning of the Backlog Project:

Overall Caseload & Case Processing Times

FY Ending

Number of 

Cases in 

Contest

Avg. Days 

Contest to 

Decision

September 30, 2010 18,190 517

September 30, 2011 15,830 546

September 30, 2012 12,982 541

September 30, 2013 7,612 463

September 30, 2014 6,278 459

Source: FMSHRC

FMSHRC Backlog Activities

FMSHRC has faced great challenges in recent years, as its trial caseload within the 

Offices of the Administrative Law Judges (OALJ) increased dramatically. From FY 

2000 through FY 2005, the average number of new cases filed was about 2,300 per year

with the average number of pending cases at about 1,400. However, beginning in FY 

2006 the number of new cases filed increased steadily as did the number of pending 

cases. In FY 2009 there were about 9,200 new cases filed with over 14,200 cases pending 

at year end.

As of July 29, 2010 (when the Supplemental Appropriations Act was enacted giving 

DOL and FMSHRC funds for one year to reduce the backlog), FMSHRC had a total of 

17,591 cases in its trial-level inventory. 

Supported by the FY 2011 continuing resolutions, as well as the FY 2010 Supplemental 

Appropriation, FMSHRC took a number of steps to dispose of cases more efficiently and 

to reduce the backlog. Most importantly, FMHSRC established new offices and hired 
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additional personnel to tackle the backlog, including six new full time equivalent judges 

and the staff to support their work. In addition, based upon successful practices used to 

reduce the backlog, the OALJ reorganized in FY 2014 and realigned staff resources by 

providing each of the 15 Administrative Law Judges with one permanent law clerk and 

one legal assistant.

In addition to the targeted case Backlog Project with DOL, FMSHRC promulgated two 

final rules in FY 2011, both aimed at streamlining the adjudicatory process: 

 Settlements: On November 30, 2010, FMSHRC published in the Federal Register 

a final rule on settlement procedures. The goal of the rule is to make the 

settlement of cases more efficient and to produce judicial economy, by requiring 

that parties who file motions to approve settlement submit a proposed order

approving settlement with the motion. 

 Simplified Proceedings: On December 28, 2010, FMSHRC published in the 

Federal Register a final Simplified Proceedings rule setting forth procedures that 

simplify and streamline the processing of certain civil penalty proceedings. 

FMSHRC also actively explored the implementation of an electronic case management 

system to increase the speed and efficiency with which cases are processed. On March 

23, 2011, it submitted a report to Congress describing the options, costs and timelines 

associated with this project. An electronic case management system procurement was

initiated in FY 2012 and implemented in FY 2014. This system permits electronic filing, 

fully electronic case files, electronic assignment and distribution of cases, case tracking 

and other utilities. In anticipation of this new system, the FMSHRC initiated pilot 

projects to increase the use of technology in case management that helped to identify and 

ameliorate potential barriers to e-filing.

DOL Backlog Activities

SOL: Litigation Activities to Address Backlog Cases

Under the Backlog Project, SOL developed specialized litigation teams in separate 

temporary offices that work closely with MSHA Technical Advisors (TAs) to research 

and prepare backlog cases for settlement conferences and trials. The success of the 

Backlog Project is due in part to the pairing of TAs with SOL attorneys. The TAs, armed 

with considerable technical expertise and a full understanding of MSHA’s enforcement 

policies and priorities, are able to assist attorneys in case evaluation and decisions 

regarding settlements in significant cases on behalf of the agency. They are also 

authorized to approve settlements reached by SOL attorneys, a function otherwise 

reserved for MSHA’s District Managers. The Nashville, Philadelphia and Denver offices

of the Backlog Project are currently each staffed with two TAs. 

Initially, the Backlog Project offices focused exclusively on a group of cases identified 

above as the “targeted backlog,” but starting in FY 2012, due to the success of the 
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project, they began working on contested cases transferred from the MSHA offices. In 

FY 2013, MSHA transferred about 2,200 cases to the Backlog Project, and in FY2014, it 

transferred about 2,400. In FY 2015, MSHA will transfer 2,350 cases to those offices. 

Since the sole focus of the Backlog Project is on MSHA contested cases, Backlog

attorneys have been able to concentrate their efforts on litigation tools designed for these 

kinds of cases. 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 addition, MLBP 

attorneys have been able to leverage the volume of cases assigned to backlog project 

offices to reach resource-saving global settlements involving multiple cases. As noted 

earlier with the transfer of cases from MSHA’s Conference Litigation Representatives 

(CLRs) to the Backlog Project, DOL is building greater capacity and CLR offices are

able to handle more of the less complicated contested cases.

SOL attorneys in the Regional offices continue to identify legal and policy issues in 

certain cases and develop strategic recommendations for improved future enforcement.

SOL continues to assist CLRs with legal and procedural issues that arise. In addition, 

permanent SOL staff from SOL’s existing regional offices continue to handle more 

complicated MSHA cases including those involving accidents, injuries, or fatalities; cases 

involving closure orders; pattern of violations cases and imminent danger orders. Finally, 

SOL is incorporating “lessons learned” from the Backlog Project, particularly regarding 

global settlements, in the SOL Regional offices.

DOL: Actions to Reduce the Contested Caseload

DOL has taken a number of actions to reduce the contested caseload. For example, in

January, 2012, MSHA introduced new procedures for conducting pre-contest

conferences. All of MSHA’s coal and metal nonmetal districts participate in these 

conferences, which are granted at the discretion of the District Manager. As of June 30, 

2015, MSHA had conferenced nearly 15,000 violations. Of those that were conferenced, 

54 percent were not contested. 

MSHA has also been implementing enforcement and other initiatives that are improving

compliance by mine operators and resulting in fewer contested citations. These include 

administrative and regulatory changes to the Pattern of Violations (POV) process to rein 

in chronic violators, and outreach and collaboration with MSHA stakeholders to improve 

compliance with MSHA’s mandatory safety and health standards.

In the more than 30 years since the passage of the Mine Safety and Health Act of 1977, 

which provided that mine operators with a pattern of significant and substantial violations 

be subject to closure orders for areas of the mine affected by those violations until the 

mine receives a clean inspection, MSHA had never successfully placed a single mine on 

a POV. In 2010, MSHA took a critical first step to reform the POV enforcement program 

by revising the POV screening criteria. This new criteria gave the agency additional 

enforcement tools to use at mines with a history of violating safety standards. This was 
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followed in 2013, by the issuance of a final POV rule to further strengthen MSHA’s 

procedures and place the responsibility for monitoring POV status on the mine operator. 

Mine operators are paying more attention to their compliance with mandatory safety and 

health standards to avoid accruing a history of violations that could lead to a mine being 

placed on a POV. MSHA conducts a quarterly review of mines that underwent the POV 

process, and these reviews show that these mines have subsequently improved their 

performance and continue to do so.

Since April, 2010, MSHA has also been conducting impact inspections at mines meriting 

increased agency attention and enforcement due to their poor compliance history or 

particular compliance concerns.

MSHA’s Examination of Work Areas in Underground Coal Mines for Violations of 

Mandatory Health or Safety Standards final rule, which was effective on August 1, 2012,

requires mine operators in underground coal mines to identify and fix hazards and 

violations before MSHA shows up at a mine to conduct its inspections.

MSHA’s outreach and collaboration with its stakeholders to assist operators in complying 

with MSHA standards are also helping to drive down the number of violations. By way 

of illustration, for metal and nonmetal mines, MSHA published a guarding policy

(Guarding I and II) regarding mobile equipment and a fall protection policy that uses 

OSHA’s 6-foot rule as guidance. Since initiating the guarding policy in FY 2010 through 

FY 2014, guarding violations were down 43 percent. MSHA’s policy on fall protection 

went into effect in FY 2013 and through FY 2014, fall protection violations declined by 

12 percent. 

As a result of these initiatives and other activities, compliance overall is improving and 

from FY 2010-2014, the annual number of total violations cited by MSHA dropped 30 

percent. This was accompanied by a decline in the percentage of citations contested from 

a high of 27 percent in FY 2010 to 20 percent in FY 2014.

Projections for the Contested Trial Caseload for FY 2017

While DOL and FMSHRC project that the average case processing time will be reduced 

by FY 2017, the Agencies disagree on the extent of the reduction. As a result, this Report 

provides both projections. 

DOL’s Projections for Case Resolution Times

Based upon historical data by fiscal year, which includes the rates at which penalties 

were contested and disposed, and with the current level of funding and staff, DOL and 

MSHA have projected that by the end of FY 2017, at most the case processing times 

could be reduced to an average of 332 days. 
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DOL applauds FMSHRC’s aspiration of reducing the average case processing time to 

200 days, as outlined below. However, DOL believes this projection is overly optimistic 

and is based on receiving increased funding, as well as on the assumption that even if the 

case load is reduced to pre-2007 levels, processing times will also decrease to pre-2007 

levels. DOL believes that the current cases involve more complex issues, e.g. flagrant 

violations and POV, and much higher penalties that will require greater processing time 

than the FY 2006 caseload. The average penalty assessed in FY 2006 was $240.00 and 

the average penalty assessed in FY 2014 was $828.00, over three times as much. In 

addition, litigation by its nature is unpredictable. It may be possible that, based on 

discovery, a relatively new penalty case can be settled within one month. On the other 

hand, another relatively new penalty case just filed could have a discovery schedule 

extending through admissions, interrogatories and depositions over the course of 9 

months due to scheduling issues between the attorneys and the judge. The filing of a 

motion for summary judgment—a relatively common litigation occurrence-- or a motion 

for interlocutory review—a less common occurrence, but a possibility nonetheless --

could also substantially increase the time until a final ALJ decision by many months. 

Finally, the vigorous representation of the Secretary by DOL and the equally vigorous 

representation of mine operators by private counsel are other “unknown” quantifiers that 

cannot be estimated with any degree of accuracy in order to arrive at “average” times. 

Consequently, DOL believes instead that its projections paint a much more realistic 

picture of case processing times through FY 2017. 

MSHA Projections for Case Processing Times

 

 FY Ending 

 Number of 

Cases in Contest 

 Avg. Days to 

Contest to 

Decision 

Projected 9/30/2015 5,500 401

Projected 9/30/2016 4,200 366

Projected 9/30/2017 3,500 332

Source: Cases in Contest – FMSHRC; Avg Days Contest to Decision –

Extrapolated from MSHA’s Data

FMSHRC’s Projections for Case Resolution Times

The Commission, having set the goal of returning pendency to pre-backlog levels, is well 

aware of the challenge of reducing pendency as well as the resources necessary to 

accomplish this challenge. The pendency figures have fluctuated throughout 2015 as 

some of the Commission’s oldest cases are disposed, which raises the pendency figure for 

2015, but will result in a lower pendency figure for 2016 and 2017.

The Targeted Average Days Contest to Disposition are FMSHRC strategic goals. 

FMSHRC has adopted pendency as the main performance factor for caseload. Pendency 

is defined as the average number of days between case creation and case disposition at 

the trial level. FMSHRC has established ambitious pendency targets for each fiscal year. 

These targets were estimated based upon historical workload data from before the FY
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2009 surge and take into account the realigned structure that provides 15 Administrative 

Law Judges (ALJs) each staffed with a law clerk/attorney advisor and a legal assistant. 

Average case disposition pendency remained fairly constant from FY 2001 through FY 

2006 averaging 230 days. Starting in FY 2007, there was a significant increase in new 

cases, and the pendency rose to a high of 546 days in FY 2011. FMSHRC predicts that 

case pendency will continue to drop until it reaches an average of 200 days at the end of 

FY 2017.

This pendency is derived from the expected pendency for case dispositions with hearing 

and without hearing. The pendency for cases with hearings is predicted at 510 days. This 

is based upon a review conducted for FMSHRC by the National Center for State Courts 

that proposed a trial-level time standard of 540 days for penalty cases with hearing. 

FMSHRC has lowered that standard to 510 days due to efficiencies created by the 

electronic case management system. FMSHRC has determined that the pendency for 

cases without hearing (which comprise 94% of all cases) should average 190 days. This 

results in an overall pendency for all cases of 200 days. This is in line with the average 

pendency of 230 days in the pre-surge period before FY 2007.

FMSHRC predicts that there will be 3,300 cases on hand at year end FY 2017. This is 

based upon the FY 2015 estimated new cases of 6,000, and DOL’s determination that this 

number should hold steady, as citations issued and contest rate are predicted to remain 

constant from FY 2015 to FY 2017. With a prediction of 6,000 new cases per year, and 

the current FMSHRC authorization of 15 ALJs, this equates to 400 case dispositions per 

year per ALJ, a 30% increase over the pre-FY 2007 disposition rate. This increase is 

supported by the increased staffing ratio structure that provides each ALJ with a law 

clerk/attorney advisor and a legal assistant. 

FMSHRC’s Projections for Case Processing Times

FY Ending Number of 

Cases in Contest

Targeted Avg. 

Days Contest to 

Decision

9/30/2015 4,452 425

9/30/2016 4,200 300

9/30/2017 3,300 200

The OALJ will be able to reduce the number of cases on hand by temporarily increasing 

the dispositions per year. This is due to the continued ability of the OALJ to field backlog 

teams consisting of additional law clerks and an additional settlement attorney. It is 

projected that these positions can be supported through FY 2016 to allow the number of 

cases on hand to be reduced to 3,300 by FY 2017. At that point, FMSHRC estimates that 

the number of dispositions will equal the number of new cases.
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FMSHRC: Appellate Cases

The five-member FMSHRC provides administrative appellate review. Review of a 

judge’s decision by the FMSHRC is not automatic and requires the approval of at least 

two Commissioners.

Although the focus of this report is on the trial level cases within the OALJ, FMSHRC 

has seen a dramatic increase in the number of filings for appellate review. The increased 

number of penalty cases at the OALJ has resulted in a dramatic increase in substantive

cases being appealed. The OALJ increase started in FY 2008, and the corresponding 

increase in appellate level substantive cases began in FY 2009 and continued through FY 

2014.

The trend of an increased number of petitions being filed for appellate review is likely to

continue for the foreseeable future. In FY 2008, 8 petitions for review of judges’ 

decisions were filed, and 4 petitions were granted. In FY 2014, 32 petitions were filed 

and 19 were granted. 

The increase in cases filed has resulted in an increased number of cases on hand at the 

appellate level. In FY 2009 there were eight cases on hand. In FY 2013, there were 69 

cases on hand at year end. FMSHRC has adopted the goal of 19 substantive cases on 

hand by year end FY 2016.

There has also been an increase in the pendency of appellate cases. Pendency is defined 

as the elapsed time from when FMSHRC has granted review of a petition for 

discretionary review (PDR) or a petition for interlocutory review (PIR) until a decision is 

issued. 

FMSHRC has adopted a goal of 12 months for pendency of appellate cases. The matters 

to which this goal applies are significant cases with many presenting issues of first 

impression under the Mine Act. Many cases raise issues that have not been resolved by 

prior decisions of FMSHRC or the courts, or the cases involve the interpretation of 

safety and health standards and regulations promulgated by the MSHA. In addition, time 

is expended by the Commission in the review of Petitions for Discretionary Review that 

are not granted and the review of Petitions for Temporary Reinstatement.

Strategic Objective: Ensure timely issuance of decision for appellate cases

Performance Goal 2015 Target 2016 Target 2017 Target

Average time to 

issuance of decision

31 months 21 months 12 months

FMSHRC projects that the goal of 12 months pendency can be reached by FY 2017. To 

reach that goal, FMSHRC has established internal milestones for case completion, and 

monitors the status of those milestones on a monthly basis. FMSHRC has also taken 

action to increase staffing. The FY 2014 appropriation provided for an additional three 
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attorney-advisors in the Office of the General Counsel; those positions have been filled. 

The FY 2016 President’s Budget requests an additional three counsel-attorney positions 

in the Offices of the Chairman and Commissioners. These would be temporary 

positions to assist the Commissioners in deciding cases over the next three years. 

In conclusion, using additional funding from Congress, DOL and FMSHRC have made 

great strides in reducing the backlog of contested cases pending before FMSHRC.

Going forward, we will continue to work toward achieving our goals for case backlog 

and pendency.