Final Report on the 

Targeted Caseload 

Backlog Reduction Project

Submitted by:

The Federal Mine Safety and Health Review 

Commission

And

The United States Department of Labor

November 14, 2011
Introduction

This is the final report of the Federal Mine Safety and Health Review Commission 

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

the targeted case backlog reduction project described in the Joint Operating Plan 

submitted to Congress on September 7, 2010. This report will first summarize the overall 

caseload reduction achievements under the project since its inception, and conclude with 

a report on the activities of the agencies in the fourth and final quarter of the project, 

April 29 through July 28, 2011. 

Pursuant to Chapter 7 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 the Commission, and other purposes related to mine 

safety. 

Of the $18,200,000 provided to DOL, $10,940,750 was 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 was 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. 

Although the supplemental funding expired on July 28, 2011, the Commission’s full level 

of effort dedicated to caseload reduction under the Supplemental continued through 

September 30, 2011. The Commission used FY 2011 funding to carry over staff initially 

brought on with supplemental funding for the final two months of FY 2011. 

DOL was also able to continue backlog reduction project efforts through the end of 

FY2011. Section 1807 of Title VIII of the full-year Continuing Resolution enacted on 

April 15, 2011, stated: 

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 . . . . 

2
Pursuant to that authority, MSHA transferred $2,000,000 to the Departmental 

Management account for use by SOL for the continued funding of the case backlog 

reduction project through September 30, 2011. With this additional funding SOL was 

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

certain enhancements, including the addition of a number of short-term FTE, to handle 

more of the cases before the Commission. MSHA also utilized $750,000 of its full-year 

CR funding for backlog reduction activities through September 30, 2011, including 

additional contract clerks. 

Report on Overall Caseload Reduction Achievements 

Under the Joint Operating Plan 

Most cases in the Commission’s trial level inventory are penalty cases, in which a mine 

operator challenges a civil penalty that MSHA has proposed for the violation described in 

a citation or order. Other types of cases include contest cases, involving an operator’s 

contest of the issuance of a citation or order; discrimination cases in which a mine 

employee alleges that s/he suffered an adverse employment action as a result of engaging 

in a safety-related activity protected under the Mine Act; challenges to orders to close a 

mine; miners’ requests for compensation after a mine has been idled by a closure order; 

and disputes arising over the review and approval of mine emergency response plans. 

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

Commission had a total of 17,591 cases in its trial-level inventory. In their Joint 

Operating Plan to Congress, the Commission and the Department identified citations that 

were contested on or after October l, 2007, through February 28, 2010, and defined that 

group of citations and their related penalty cases as the targeted backlog. This targeted 

backlog was made up of 10,424 penalty cases involving 64,267 citations. The agencies 

developed the joint operating plan to attack the targeted backlog. 

The Commission and DOL made sound investments with the supplemental funding 

provided by the Congress, and have made significant strides in the ongoing effort to 

reduce the targeted case backlog and to decrease the overall case inventory. 

In the first quarter of the Supplemental period, both agencies opened new offices and 

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

starting new offices, and hiring and training new employees, significant progress was 

made on the disposition of cases, particularly those cases in the targeted backlog. 

Nevertheless, new cases continued to be filed, and by the end of the second quarter, the 

total number of trial level cases at the Commission had reached 19,135. 

However, in the final six months of supplemental funding, the Commission and DOL 

successfully reversed the trend of a rapidly and continually growing caseload, and as of 

the expiration of the funds, the total case inventory had dropped to 17,101 cases, despite 

an influx of 11,412 new cases filed during the Supplemental period. 

3
FMSHRC Case Inventory

at passage of Supplemental Appropriation

and at end of Supplemental Quarters

10424

8523 7317

5468

3501

7167

6759

6071

5120

3911

3304

5747

8108

9689

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

Cases Filed

After 29-Jul-10

Other Cases

in 29-Jul-10

Inventory 

Targeted

Backlog

17,591

18,586 19,135 18,696

17,101

* Note: The targeted backlog includes only penalty cases filed within a certain timeframe. FMSHRC’s 

total case inventory also includes other types of cases, such as cases contesting the issuance of a citation or 

order, and discrimination proceedings.

In the year following enactment of the Supplemental, 11,643 cases were disposed of, 

including two-thirds of the cases in the targeted backlog. In the Joint Operating Plan to 

Congress, the Commission had anticipated it would be able to dispose of between 10,040 

and 10,240 cases during the Supplemental period. The actual case disposals of 11,643 

during the Supplemental period exceeded the original goal by 12 to 14 percent. As 

illustrated by the chart below, most of those cases were disposed of in the final two 

quarters. 

The high number of case disposals in the last two quarters of the Supplemental period 

indicates that the additional staff and efficiency improvements implemented by the two 

agencies have had a direct and positive impact on productivity. As the backlog project 

progressed, DOL allocated additional backlog project resources to help address the 

growing number of new cases in FMSHRC’s case inventory. This adjustment 

contributed to the increase of non-targeted cases disposed of in the 4th Quarter, as 

illustrated in the table below. By effective allocation of resources, DOL achieved this 

increase without compromising the disposal rate of targeted cases. 

4
FMSHRC Case Dispositions

During Supplemental Quarters

1901

1206

1850

1967

418

718

1182

2401

Targeted

Backlog Cases

Other Cases

Supplemental Quarter 2

Supplemental Quarter 1

Supplemental Quarter 3

2,319

1,924

3,032

Supplemental Quarter 4

4,368

5
Report on Fourth Quarter Activities

This is the fourth and final quarterly progress report by the Commission and DOL on the 

status of the case backlog reduction project described in the Joint Operating Plan submitted to 

Congress on September 7, 2010. This progress report covers the period of April 29, 2011 

through July 28, 2011. 

FMSHRC Quarterly Activities

Obligations of Supplemental Funds and Additional Staffing for FMSHRC: 

As of July 28, 2011, the Commission had obligated a total of $3,788,434 from its 

supplemental appropriation, of which $1,181,419 was for salaries and benefits, and 

$2,607,015 was for operational expenses, travel, office space, supplies, equipment, and 

contract staff. 

Case Processing and Targeted Backlog Case/Citation Dispositions: 

The targeted backlog addressed by this quarterly report consists of the 10,424 penalty 

cases pending at the Commission on July 29, 2010, that had been filed on or after 

October 1, 2007 through February 28, 2010. From April 29, 2010 through July 28, 2011, 

FMSHRC disposed of 1,967 targeted backlog cases involving 11,079 citations. 

Case Priorities: 

FMSHRC’s Office of Administrative Law Judges (OALJ) prioritizes cases involving 

fatalities, injuries, flagrant violations, emergency response plans, mine closures, and 

discrimination complaints. Commission judges have given targeted backlog cases with a 

high number of unwarrantable failure citations or orders the highest priority, and cases 

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

Early in the project, the SOL team leaders identified 547 priority backlog cases. As of 

July 28, 2011, 308 of those cases had been disposed of, 228 had been assigned to a judge 

but had not yet been disposed of, and 8 had settlement motions pending before the Chief 

Judge. In the remaining three priority backlog cases, show cause orders had been issued 

because the operator failed to file a timely answer. If a party does not respond to a show 

cause order, the case is defaulted. 

Administrative Actions to Facilitate Disposal of Cases:

1. Global Settlements and Calendar Calls: 

FMSHRC has utilized 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 

6
via conference call, and those cases that do not settle are scheduled for hearing at a future 

date. During the reporting period, 17 global settlement conferences were scheduled, 

involving 99 cases and 854 citations. As of the end of the period, 77 of these cases, 

involving 706 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, 12 calendar calls 

were scheduled, involving 77 cases and 241 citations. As of the end of the quarter, 64 of 

the cases, involving 211 citations, had been resolved. It is anticipated that some of the 

remaining cases will reach settlement 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 setting forth procedures that simplify 

and streamline the processing of certain civil penalty proceedings. See 75 Fed. Reg. 

81459. The final rule became effective on March 1, 2011. Although the administrative 

processes in these cases are streamlined, hearings remain full due process hearings, as 

they are under conventional procedures. The Commission and DOL are currently 

refining the criteria under which cases will be selected for this streamlined process. 

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 goal 

of the rule is to make the settlement of cases more efficient and less time-consuming for 

Commission judges. The rule requires that parties who file motions to approve 

settlement 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. Between December 30, 2010, when the final rule took effect, and July 28, 

2011, an estimated 6,130 settlement motions had been filed with the Commission 

pursuant to this new procedural rule. 

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 to 

procure and implement e-case filing and management. 

In the interim, the Commission has initiated pilot projects to increase the use of 

technology in case handling that will help to identify and ameliorate potential barriers to 

e-filing. For example, the Commission is working with the Department of Labor to 

conduct a pilot for DOL to file petitions with the Commission electronically, as the vast 

majority of cases require the Secretary of Labor to file a petition with the Commission. 

7
DOL Quarterly Activities

Allocation of the DOL Appropriation:

As of July 28, 2011, SOL obligated approximately $10,841,936 for this project, of which 

$7,707,972 was for staff salaries and benefits, and $3,133,964 was for office space, 

equipment and supplies, and other operational expenses. These totals do not include an 

additional $897,909 in previously reported expenditures for staff salaries and benefits 

from SOL non-project general funds for FY2010. As noted in the first quarterly report, to 

achieve early initiation of the project, SOL utilized general FY2010 funds in August and 

September 2010 before receipt of the apportionment and allotment of the FY2010 

supplemental appropriation funds for this project. 

As of July 28, 2011, MSHA obligated $7,235,798 of the $7,259,250 available under the 

Supplemental, of which $2,280,116 was for work on cases in the backlog ($1,521,334 

was for staff salaries and benefits, and $758,782 for operational expenses), and 

$4,955,682 for the Upper Big Branch mine disaster accident investigation and internal 

review. 

SOL Activities:

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) continued to be fully operational through this quarter. Approximately 89 term 

and temporary employees were on board as of July 28, 2011. The vast majority were 

attorneys. Staffing distribution was as follows: Arlington: 12; Atlanta: 14; Nashville: 19; 

Denver: 24; Philadelphia: 17; 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 July 28, 2011 was about 72.81. 

The supplemental funding allowed a scale of resources to be brought to bear upon 

FMSHRC backlog cases that produced results otherwise unachievable during this time 

period. In addition to allowing for the litigation and settlement of a large volume of 

cases, the additional resources helped to identify and capitalize on efficiencies in case 

handling. 

The ability to focus SOL’s five backlog project offices exclusively on FMSHRC backlog 

cases permitted the concentrated use of litigation tools, development of efficient 

approaches to managing MSHA cases, and resolution of a large number of backlogged 

cases. SOL backlog project offices worked closely with MSHA technical advisors to 

research and prepare backlog cases for settlement discussions, conferences and trials. 

Case settlement decisions made by the Technical Advisors based on the strength of 

8
evidence encouraged quick resolution of individual cases and global settlements 

consisting of large numbers of citations. This coordination enabled strategic case and 

caseload management decisions that achieved positive results in many individual cases 

and grouped dockets. Project managers used a variety of litigation strategies to manage 

and effectively address caseload. Formal and informal discovery mechanisms, including 

depositions, were intensively used to develop the record and strengthen the posture of 

cases for potential settlement or successful trial. Comprehensive preparation was 

combined with short deadlines, an aversion to continuances, and motions for prompt 

trials, strategic pretrial motions, and motions for summary judgment to move cases and 

dockets. 

In particular, SOL’s ability to coordinate the litigation and preparation for trial of a large 

number of citations made it possible to negotiate global settlements involving significant 

numbers of citations and in some cases multiple dockets. One of the backlog reduction 

offices, for example, was able to reach a proposed settlement with a coal mine operator 

for several dockets involving more than 425 citations for over $520,000. A settlement of 

17 dockets involving just under 200 citations was negotiated for over $280,000. Another 

global settlement of 12 dockets involving a single operator – and over 225 citations – was 

negotiated for over $60,000, representing a 20% reduction from the original assessed 

penalties. Another office proposed a global settlement of six dockets and 88 citations 

with a total recovery of over $110,000; that settlement, if approved by Commission 

judges, would affirm 84 of the original 88 citations. 

Focused litigation and trial preparation led to case resolutions, with a number of large 

proposed settlements negotiated on the eve of trial. In one matter, after over 100 citations 

and orders were set for hearing in August 2011, and SOL attorneys noticed depositions in 

the matter, the coal mine operator settled for over $200,000, or 71% of the proposed 

penalties. In another matter, after extensive settlement negotiations and just two weeks 

before trial, the parties proposed resolution for all 157 citations at issue for a total penalty 

amount of over $110,000. All but 2 citations remained unchanged, and the operator 

agreed to pay just under 70% of the original assessment. 

MSHA Activities:

As of July 28, 2011, the MSHA staff distribution for the targeted backlog was as follows: 

 2 Coal technical advisors (TAs) in Philadelphia 

 1 Coal TA in Arlington 

 1 M/NM TA in Atlanta 

 1 Coal TA in Nashville, plus one CLR detailed to Nashville assist as a TA 

2 Coal and 1 M/NM TAs in Denver 

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

backlog cases. As of July 28, 2011 there were 4 technical specialists assisting conference 

litigation representatives on non-targeted backlog cases in Coal Districts 2 4, 5 and 6. In 

9
10

addition, 11 clerical staff and 5 technical advisors were working in the Metal and Nonmetal districts to assist conference litigation representatives. 

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. From July 29, 2010 through 

July 28, 2011, the project resulted in disposition of 6,924 targeted backlog cases 

involving 38,171 citations, or 57% of the citations in the targeted backlog. Disposition of 

citations was substantially greater than the projected disposition during the supplemental 

funding period of 18,000-22,000 targeted backlog citations In addition, the resources of 

both SOL and MSHA that have been directed at the “non-targeted” backlog has increased 

the disposal rate of non-targeted cases. 

Through July 28, 2011, SOL attorneys and MSHA CLRs obtained judgments for over 

$57 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 following 

the Commission’s disposition of the settlement motions filed by SOL. 

Conclusion

In the fourth and final quarter of this project, as well as through the full year of the 

supplemental funding, the Commission and Department of Labor were able to 

significantly address the FMSHRC case inventory. FMSHRC’s and DOL’s activities 

described in this report and prior quarterly reports both resolved individual cases and 

achieved new efficiencies in resolution of MSHA cases before the Commission. Twothirds of the 10,424 cases in the targeted backlog – 6,924 – were disposed of. Altogether, 

11,643 cases -- targeted and non-targeted – were concluded. Further, in the final six 

months of supplemental funding, the combined efforts of the Commission and DOL were 

able to reverse the trend of a growing caseload. As of July 28, 2011, the total inventory of 

cases pending before FMSHRC had dropped to 17,101, a level lower than the total case 

inventory at the start of funding.