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Twentymile Brief, on petition for review of a decision

ORAL ARGUMENT SCHEDULED FOR
MAY 16, 2005

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________________________________________________

Docket No. 04-1292 (Consolidated with No. 04-1312)
________________________________________________________________

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

Petitioner,

v.

TWENTYMILE COAL COMPANY

and

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.

________________________________________________________________

ON PETITION FOR REVIEW OF A DECISION
OF THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
________________________________________________________________

BRIEF FOR THE SECRETARY OF LABOR

HOWARD M. RADZELY
Solicitor of Labor

EDWARD P. CLAIR
Associate Solicitor

W. CHRISTIAN SCHUMANN
Counsel, Appellate Litigation

JERALD S. FEINGOLD
Attorney

U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Suite 2200
Arlington, Virginia 22209-2296
Telephone: (202) 693-9335

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

    (A)    Parties and Amici. The parties who appeared before the Federal Mine Safety and Health Review Commission ("the Commission") are the Secretary of Labor and Twentymile Coal Company. The parties in this Court are the Secretary of Labor, Twentymile Coal Company, and the Commission. No amici appeared before the Commission, and there are no amici in this Court.

    (B)    Rulings Under Review. The Secretary of Labor seeks review of the decision of the Commission issued on August 12, 2004, in Twentymile Coal Co., FMSHRC Docket Nos. WEST 2000-480-R and WEST 2002-131, and reported at 26 FMSHRC 666 (2004).

    (C)    Related Cases. This case was not previously before this Court or any other court. Other than the two dockets, Nos. 04-1292 and 04-1312, consolidated into one case by order of the Court dated September 8, 2004, counsel for the Secretary are unaware of any other related cases pending in this Court or any other court.

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

TABLE OF AUTHORITIES

GLOSSARY OF ABBREVIATIONS AND ACRONYMS

STATEMENT REGARDING JURISDICTION

STATEMENT OF THE ISSUE PRESENTED

PERTINENT STATUTES AND REGULATIONS

STATEMENT OF THE CASE

A.    Nature of the Case

B.    Course of Proceedings and Disposition Below

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT

IN REFUSING TO ASSESS A PENALTY FOR TWENTYMILE'S VIOLATION OF A STANDARD, THE COMMISSION DISREGARDED ESTABLISHED PRINCIPLES OF ADMINISTRATIVE LAW AND THE PENALTY PROVISIONS OF THE MINE ACT

A.    Applicable Principles and Standard of Review

B.    The Role of Penalties in Enforcement of the Mine Act

C.    In Refusing to Assess a Penalty for Twentymile's Violation of a Standard, the Commission Disregarded the Principles Set Forth by the Supreme Court in Brock v. Pierce County

D.    In Refusing to Consider the Fact that Twentymile Was Not Prejudiced by the Amount of Time It Took the Secretary to Propose a Penalty, the Commission Disregarded the Principles Set Forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership

E.    In Calculating the Time It Took the Secretary to Propose a Penalty as Starting When the Order Was Issued Instead of When the Accident Investigation Was Terminated, the Commission Disregarded the Terms of Section 105(a) of the Mine Act

F.    In Substituting Its View of the Facts for the Judge's View, the Commission Exceeded Its Authority Under Section 113(d)(2)(A)(ii) of the Mine Act

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

*    Authorities upon which we chiefly rely are marked with asterisks.

CASES

Allied Products Co. v. FMSHRC, 666 F.2d 890 (5th Cir. 1982)

Ambrosia Coal & Construction Co., 18 FMSHRC 1552 (1996)

*    Asarco, Inc.-Northwestern Mining Dept. v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989)

Bailey v. United States, 516 U.S. 137 (1995)

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003)

Bell Atlantic Telephone Companies v. FCC, 131 F.3d 1044 (D.C. Cir. 1997)

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986)

*    Brock v. Pierce County, 476 U.S. 253 (1986)

Bro. of Railway Carmen Div. Transportation Communications Int'l Union v. Pena, 64 F.3d 702 (D.C. Cir. 1995)

Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)

*    Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

*    Coal Employment Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989)

*    Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983)

Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981)

Ethyl Corp. v. EPA, 51 F.3d 1053 (D.C. Cir. 1995)

George Harms Construction Co. v. Secretary of Labor, 371 F.3d 156 (3d Cir. 2004)

*    Gottlieb v. Pena, 41 F.3d 730 (D.C. Cir. 1994)

*    Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997)

Havens Steel Co. v. OSHRC, 738 F.2d 397 (10th Cir. 1984)

*    Heckler v. Chaney, 470 U.S. 821 (1985)

Lairsey v. Advance Abrasives Co., 542 F.2d 928 (5th Cir. 1976)

Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122 (D.C. Cir. 1995)

North Carolina Utilities Comm'n v. FERC, 653 F.2d 655 (D.C. Cir. 1981

Old Ben Coal Co., 7 FMSHRC 205 (1985)

Old Dominion Power Co., 6 FMSHRC 1886 (1984) aff'd on other grounds, 772 F.2d 92 (4th Cir. 1985)

Panhandle Co-op. Ass'n, Bridgeport, Nebraska v. EPA, 771 F.2d 1149 (8th Cir. 1985)

*    Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993)

RAG Cumberland Resources LP, 26 FMSHRC 639 (2004), petition for review on other grounds filed December 20, 1994 (D.C. Cir. No. 04-1427)

RAG Cumberland Resources LP v. FMSHRC, 272 F.3d 590 (D.C. Cir. 2001)

Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (1993), aff'd on other grounds, 57 F.3d 982 (10th Cir. 1995)

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)

Salt Lake County Road Dept., 3 FMSHRC 1714 (1981)

Secretary of Labor v. Cannelton Industries, Inc., 867 F.2d 1432 (D.C. Cir. (1989)

*    Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003)

Secretary of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir. 1996)

Sedgman and David Gill, FMSHRC Nos. SE 2002-111, etc., petitions for discretionary review granted, December 10, 2004

Spurlock Mining Co., 16 FMSHRC 697 (1996)

Steele Branch Mining, 18 FMSHRC 6 (1996)

Tazco, Inc., 3 FMSHRC 1895 (1981)

Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984)

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)

Time Warner Entertainment Co., L.P. v. FCC, 240 F.3d 1126 (D.C. Cir.), cert. denied sub nom.

Consumer Federation of America v. FCC, 534 U.S. 1054 (2001)

Twelve John Does v. District of Columbia, 841 F.2d 1133 (D.C. Cir. 1988)

United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002)

United States v. Brown, 133 F.3d 993 (7th Cir.), cert. denied, 523 U.S. 1131 (1998)

United States v. James Daniel Good Real Property, 510 U.S. 43 (1993)

*    United States v. Montalvo-Murillo, 495 U.S. 711 (1990)

United States v. Rein, 848 F.2d 777 (7th Cir. 1988)

Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711 (D.C. Cir. 1989)

STATUTES AND CODES

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et seq. (1977)

Section 2, 30 U.S.C. § 801
Section 2(c), 30 U.S.C. § 801(c)
Section 101, 30 U.S.C. § 811
Section 103, 30 U.S.C. § 813
Section 103(a), 30 U.S.C. § 813(a)
Section 104, 30 U.S.C. § 814
Section 104(a), 30 U.S.C. § 814(a)
Section 104(d), 30 U.S.C. § 814(d)
Section 104(g), 30 U.S.C. § 814(g)
Section 104(g)(1), 30 U.S.C. § 814(g)(1)
Section 105, 30 U.S.C. § 815
*    Section 105(a), 30 U.S.C. § 815(a)
Section 105(b)(1)(B), 30 U.S.C. § 815(b)(1)(B)
Section 105(d), 30 U.S.C. § 815(d)
Section 106, 30 U.S.C. § 816
Section 106(a), 30 U.S.C. § 816(a)
Section 106(a)(1), 30 U.S.C. § 816(a)(1)
Section 106(b), 30 U.S.C. § 816(b)
*    Section 110(a), 30 U.S.C. § 820(a)
*    Section 110(i), 30 U.S.C. § 820(i)
Section 113, 30 U.S.C. § 823
Section 113(d), 30 U.S.C. § 823(d)
Section 113(d)(2)(A), 30 U.S.C. § 823(d)(2)(A)
Section 113(d)(2)(A)(ii), 30 U.S.C. § 823(d)(2)(A)(ii)

30 C.F.R. § 48.2(f)

30 C.F.R. § 48.7(c)

30 C.F.R. § 100.3

Miscellaneous

Fed. R. app. P. 4(b)

Fed. R. Civ. P. 55

Fed. R. Civ. P. 60(b)

S. Rep. No. 95-181, 9th Cong., 1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 622 (1978)

GLOSSARY OF ABBREVIATIONS AND ACRONYMS

Commission
J.A.
Mine Act or Act
MSHA
Secretary
Stip.
Tr.
Twentymile

Federal Mine Safety and Health Review Commission
Joint Appendix
Federal Mine Safety and Health Act of 1977
Mine Safety and Health Administration
Secretary of Labor
Stipulation
Transcript
Twentymile Coal Co.

STATEMENT REGARDING JURISDICTION

    The Court has jurisdiction over this proceeding for review of a decision of the Federal Mine Safety and Health Review Commission ("the Commission") under Section 106 of the Federal Mine Safety and Health Act of 1977 ("the Mine Act" or "the Act"), 30 U.S.C. § 816. The Commission had jurisdiction over the matter under Sections 105(d) and 113(d) of the Mine Act, 30 U.S.C. §§ 815(d) and 823(d).

    The decision of the administrative law judge in this case was issued on July 14, 2003. By order dated August 22, 2003, the Commission excused the late filing of Twentymile Coal Company's ("Twentymile's") petition for discretionary review of the judge's decision and granted review pursuant to Section 113(d)(2)(A) of the Mine Act, 30 U.S.C. § 823(d)(2)(A).25 FMSHRC 464, 465. The Commission issued its decision on August 12, 2004. The Commission denied reconsideration of its decision on august 25, 2004. The Secretary filed a timely petition for review of the Commission's decision with the Court on August 30, 2004, and Twentymile filed a timely petition for review on September 9, 2004.

    The Secretary has standing to appeal the Commission's decision under Section 106(b) of the Mine Act, 30 U.S.C. § 816(b), and Twentymile has standing to appeal the Commission's decision under Section 106(a)(1) of the Act, 30 U.S.C. § 816(a)(1). The Commission's decision represents a final Commission order that disposes of all of the parties' claims.

STATEMENT OF THE ISSUES PRESENTED

    (1).    Whether, in refusing to assess a civil penalty for Twentymile's violation of a mandatory standard, the Commission disregarded the principles set forth by the Supreme Court in Brock v. Pierce County.

    (2).    Whether, in refusing to consider the fact that Twentymile was not prejudiced by the time it took the Secretary to propose a penalty, the Commission disregarded the principles set forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership.

    (3).    Whether, in calculating the time it took the Secretary to propose a penalty as starting when the citation was issued instead of when the accident investigation was terminated, the Commission disregarded the terms of Section 105(a) of the Mine Act.

    (4).    Whether, in substituting its view of the facts for the judge's view, the Commission exceeded its authority under Section 113(d)(2)(A)(ii) of the Mine Act.

PERTINENT STATUTES AND REGULATIONS

    Pertinent statutes and regulations are set forth in the bound Addendum to this brief beginning at page A-1.

STATEMENT OF THE CASE

A.    Nature of the Case

    The Mine Act was enacted to improve safety and health in the Nation's mines. 30 U.S.C. § 801. In enacting the Mine Act, Congress stated that there was "an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's * * * mines * * * in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines[.]" 30 U.S.C. § 801(c).

    Sections 101 and 103 of the Mine act authorize the Secretary, acting through the Mine Safety and Health administration ("MSHA"), to promulgate mandatory safety and health standards for the Nation's mines and to conduct regular inspections of those mines. 30 U.S.C. §§ 811 and 813. MSHA inspectors regularly inspect mines to assure compliance with the Mine Act and MSHA standards. 30 U.S.C. § 813(a).

    Section 104 of the Mine Act provides for the issuance of citations and orders for violations of the Mine Act or MSHA standards. 30 U.S.C. § 814. If an MSHA inspector discovers a violation of the Mine Act or a standard during an inspection or an investigation, he must issue a citation or an order pursuant to Section 104(a) or 104(d) of the Mine Act. 30 U.S.C. §§ 814(a) and 814(d). If the inspector finds that the violation is "significant and substantial" or the result of the mine operator's "unwarrantable failure to comply," he must include such findings in the citation. 30 U.S.C. § 814(d). [1] Sections 105(a) and 110(a) of the Mine Act provide for the proposal and assessment of civil penalties for violations of the Mine Act or MSHA standards. 30 U.S.C. §§ 815(a) and 820(a).

    The Commission is an independent adjudicatory agency established under the Mine Act to provide trial-type administrative hearings and appellate review in cases arising under the Mine Act. 30 U.S.C. § 823. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 204 (1994); Secretary of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 113-14 (4th Cir. 1996). A mine operator may contest a citation, order, or proposed civil penalty before a Commission administrative law judge. 30 U.S.C. §§ 815 and 823. Any person adversely affected or aggrieved by an administrative law judge's decision may seek review by filing a petition for discretionary review with the Commission. 30 U.S.C. § 823. Whether to direct review is committed to the Commission's discretion. Ibid. Any person adversely affected or aggrieved by a Commission decision, including the Secretary, may obtain review by filing a petition for review with an appropriate court of appeals. 30 U.S.C. § 816(a) and (b).

    This proceeding involves the civil penalty provisions of the Mine Act. Section 105(a) of the Mine Act states in relevant part:

If, after an inspection or investigation, the Secretary issues a citation or order under section 104, [she] shall, within a reasonable time after the termination of such inspection or investigation, notify the operator * * * of the civil penalty proposed * * *.

30 U.S.C. § 815(a). Section 110(a) of the Act states in relevant part:

The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this Act, shall be assessed a civil penalty by the Secretary
* * *.

30 U.S.C. § 820(a). Section 110(i) of the Act states in relevant part:

The Commission shall have the authority to assess all civil penalties provided in this Act. In assessing civil monetary penalties, the Commission shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

    The mandatory safety standard at issue in this case is 30 C.F.R. § 48.7(c), which states:

Miners assigned a new task * * * shall be instructed in the safety and health aspects and safe work procedures of the task * * *, prior to performing such task.

The term "task" is defined as a "work assignment that includes duties of a job that occur on a regular basis and which requires physical abilities and job knowledge." 30 C.F.R. § 48.2(f). The administrative law judge found, and the Commission affirmed, that Twentymile committed a significant and substantial violation of Section 48.7(c) when it failed to provide task training to its miners prior to their performing the new task of unplugging the new rock chute at its mine. The Commission nonetheless reversed the judge's imposition of a civil penalty for Twentymile's violation, refusing to impose any civil penalty for the violation because of the amount of time the Commission determined it took the Secretary to propose a civil penalty for the violation. The issues raised by the Secretary relate to whether, under the Mine Act, the Commission can refuse to assess a civil penalty for an affirmed violation.

B.    Course of Proceedings and Disposition Below

    This case arose when, after investigating an accident in which a miner was seriously injured when he fell from a ladder on the side of the mine's rock chute, MSHA issued Twentymile an order under Section 104(g)(1) of the Mine Act, 30 U.S.C.§ 814(g)(1), [2] for violating a training standard requiring that miners be tasked-trained before being assigned to perform new tasks. Stip. 21 (J.A. 12-13); Tr. 39 (J.A. 87). Twentymile contested the order, and the case was assigned to an administrative law judge of the Commission.

    In his decision of July 14, 2003, the judge affirmed the Section 104(g) order, as amended, finding that Twentymile committed a significant and substantial violation of Section 48.7(c) when six of its miners engaged in unplugging the rock chute without having been task-trained in that task. The judge first held that the order as issued, and as amended at the hearing, was sufficiently specific to "ascertain the conditions that require[d] correction and prepare adequately for a hearing." 25 FMSHRC 373, 381 (J.A. 161). The judge noted that the order, as initially written to cover "[p]ersonnel * * * who had reason to work from or travel on the ladders and landings of the 'Rock Chute,'" gave Twentymile adequate notice of who was subject to the order. The judge concluded that "Twentymile * * * controlled work assignments at the mine" and "[p]resumedly * * * knew whom it would assign 'to work from or travel on the ladders and landings.'" 25 FMSHRC at 382 (J.A. 162). The judge further concluded that, even if the order as initially written lacked sufficient specificity because it failed to name the individual miners involved, "the flaw was corrected when the order was amended without objection[] to include the names of those who were not given the requisite task training." Ibid. The judge noted that "the record is devoid of evidence that the wording of the order in any way hindered Twentymile in its ability to present a cogent case." Ibid.

    In affirming the allegation that Twentymile violated Section 48.7(c), the judge noted that it was uncontested that "none of the miners * * * assigned to unplug the chute was trained in the job prior to being sent to do it." 25 FMSHRC at 383 (J.A. 163). The judge concluded that the job of unplugging the rock chute was a "new task" requiring prior task training under Section 48.7(c) because it was a "work assignment that includes duties of a job that occur on a regular basis and which requires physical abilities and job knowledge" to perform safely. 25 FMSHRC at 383-84 (J.A. 163-64). In determining whether the job of unplugging the rock chute was one that occurs on a "regular basis" (see 30 C.F.R. § 48.2(f)), the judge employed a "reasonably prudent person test." Ibid. He concluded that the job would occur on a regular basis because "it was reasonable for Twentymile management to anticipate that the chute would clog as mining continued." 25 FMSHRC at 384 (J.A. 164). The judge found that Twentymile "actually foresaw the event" on the basis of several factors: (1) that the chute was provided with four observation doors; (2) that Twentymile had "installed two internal devices to indicate when material stopped flowing in the chute * * *"; (3) that other chutes at the mine were known to have a "recurring problem" of jamming with "the same type of wet, sticky material" that was directed down the rock chute; and (4) that, because miners had been sent to unplug other chutes at the mine at least every several months, "it was reasonable to expect the rock chute would clog at least as frequently." Ibid.

    In affirming the allegation that Twentymile's violation of Section 48.7(c) was significant and substantial, the judge found that "[t]he miners' lack of training made it reasonably likely that an accident would occur." 25 FMSHRC at 385 (J.A. 165). The judge further found that "given the heights at which miners could be traveling or working and the heavy material that could spill from the chute, any such accident was reasonably likely to cause a serious injury." Ibid. The judge concluded that "Twentymile's failure to provide the required training made it reasonably likely the miners assigned to unplug the rock chute would not have sufficient knowledge of available techniques and procedures to protect themselves from the hazards associated with the job." Ibid.

    Finally, the judge held that the time the Secretary took to propose a civil penalty against Twentymile did not, as Twentymile argued, warrant dismissal of the penalty proceeding. 25 FMSHRC at 386-88 (J.A. 166-68). Noting that MSHA's accident investigation report was not issued until January 4, 2001, the judge found that "the delay in sending the report and [special] assessment form to the Assessment Office [on July 31, 2001]" was "understandable" and was "caused by a shift in personnel and by the failure of the person who should have completed the form to understand that it was one of his duties." 25 FMSHRC at 388 (J.A. 168). The judge also found it "understandable that MSHA did not propose penalties while the report and special assessment form remained unfinished" because the proposed penalty "could have been impacted by the report and form." Ibid. Finally, the judge found that "the lapse in time between the citation of the violation and the proposal of the penalty was not prejudicial to Twentymile." Ibid. Twentymile appealed the judge's decision to the Commission.

    In its decision of August 12, 2004, the Commission unanimously affirmed the judge's findings that Twentymile violated 30 C.F.R. § 48.7(c) in failing to provide task training to miners assigned the new task of unplugging the rock chute, and that the violation was significant and substantial 26 FMSHRC 666, 671, 676-81 (J.A. 177, 182-87). [3] A Commission majority (Commissioners Jordan and Young dissented), however, vacated the civil penalty assessed by the judge, holding that the assessment of any penalty for the violation the Commission affirmed would be inappropriate because the Secretary waited an unreasonable amount of time [4] before proposing a penalty.26 FMSHRC at 671, 681-88 (J.A. 177, 187-94). [5] The majority rejected as a matter of law the argument that, at a minimum, a showing of prejudice to the operator must be established before the extraordinary remedy of vacating a penalty can be considered. 26 FMSHRC at 682-83 (J.A. 188-89). The majority held that either a showing of unreasonable delay in the issuance of a proposed penalty or a showing of prejudice to the operator from the delay may justify relief from the proposed penalty. 26 FMSHRC at 682 (J.A. 188).

    The majority determined that although there was no evidence of any prejudice to Twentymile from the length of time it took the Secretary to propose a penalty -- and although Twentymile alleged no prejudice -- the Secretary failed to establish adequate cause for that length of time and the judge erred "as a matter of law" in finding that the delay was reasonable. 26 FMSHRC at 684 (J.A. 190). Relying in significant part on Section 110(i) of the Mine Act, 30 U.S.C. § 820(i), which gives the Commission "authority to assess all civil penalties provided in th[e] Act," the majority concluded that the Commission was "ultimately responsible for ensuring that civil penalties are assessed in a fair and expeditious manner" and was authorized to vacate the penalty in this case "in order to vindicate the Congressional imperative that mine safety and health violations be remedied through the prompt and fair imposition of appropriate sanctions." 26 FMSHRC at 687, 688 (J.A. 193, 194).

    In a dissenting opinion, Commissioners Jordan and Young stressed that the judge found that the time it took the Secretary to propose a penalty did not prejudice Twentymile, a finding the operator did not contest, and that any delays in proposing the penalty were "understandable" and resulted from "a change in personnel and the failure of the person responsible to understand his duties." 26 FMSHRC at 693 (J.A. 199). The dissenters concluded that the majority erred in holding "as a matter of law" that the amount of time taken to propose a penalty was "per se" unreasonable, thereby unlawfully "substituting their judgment for that of the judge." Ibid. Reviewed under the "substantial evidence" standard, the dissenters determined, the judge's conclusion that the amount of time it took the Secretary to propose a penalty was reasonable should be affirmed. 26 FMSHRC at 694 (J.A. 200).

    The dissenters noted that the amount of time taken to propose a penalty in this case was similar to that in other cases the Commission had affirmed as a reasonable amount of time, and that the legislative history of the Mine Act makes clear that Congress "explicitly rejected the suggestion that [] delay should necessarily result in termination of penalty proceedings." 26 FMSHRC at 694-95 (J.A. 200-01). The dissenters stated that the majority's "drastic course" of vacating the penalty under the circumstances in this case would not "serve the deterrent purposes intended by the enforcement provisions of the Mine Act" and "can only erode a miner's confidence in the agency's ability to ensure that violations of mandatory health and safety standards will be subject to an appropriate sanction." 26 FMSHRC at 696 (J.A. 202) (citation and internal quotation marks omitted). [6]

    On August 20, 2004, the Secretary filed a petition for reconsideration of the Commission's decision. The Commission majority denied the petition for reconsideration on August 25, 2004. The Secretary filed a timely petition for review of the Commission's decision with the Court on August 30, 2004, and Twentymile filed a timely petition for review on September 9, 2004.

STATEMENT OF FACTS

    Twentymile Coal Company operates the Foidel Creek Mine, a large underground coal mine in Routt County, Colorado. Stip. 7 (J.A. 11). On June 6, 2000, Kyle Webb, a roof bolter on the continuous mining crew, [7] was seriously injured at the mine's newly-installed rock chute. Twentymile installed the chute as an integral part of the mine's belt conveyor system, and the chute became fully operational on May 26, 2000. Stip. 16 (J.A. 11); Tr. 40-41, 86, 106, 113, 145, 168 (J.A. 87-88, 99, 104, 106, 114, 119). [8] The chute was developed to divert and transfer rock from the upper level conveyor belt, where it was mixed with coal, to the lower level, from where it was carried out of the mine by conveyor belt. Stips. 11 and 12 (J.A. 11); Tr. 20, 159, 229 (J.A. 82, 117, 135). The chute was a transfer point on the mine's belt conveyor system. Tr. 229 (J.A. 135).

    The rock chute was used to transport material produced on two continuous miner sections and traversed a significant geologic fault in the strata of the mine. Tr. 20, 158, 188 (J.A. 82, 117, 124). Although the mine has several other smaller chutes, those chutes typically are angled at approximately 60 degrees from the horizontal (rather than angled 90 degrees straight down, like the rock chute) and differ significantly in design from the rock chute. Tr. 181, 222-23 (J.A. 123, 133-34). Those chutes historically have become plugged on a recurring basis. Tr. 190-91, 223, 227-28 (J.A. 125, 134, 135).

    The rock chute has a unique design and is five feet square, extending approximately 50 feet deep. Stip. 13 (J.A. 11); Tr. 222-23 (J.A. 133-34). It can handle 5,500 tons of rock per hour and was constructed with two internal indicator switches near the bottom to signal if it becomes plugged. Tr. 163, 179 (J.A. 118, 122). [9] The chute is located inside a circular vertical shaft known as the "glory hole" that measures approximately 12 feet in diameter. Tr. 79-80 (J.A. 97).

    At the time of the accident, a ladder extended along the side of the rock chute from the top to the bottom of the shaft. Stip. 14 (J.A. 11). Four landings accessed by the ladder were spaced at equal intervals (approximately every ten feet) along the chute. Stip. 15 (J.A. 11); Tr. 50 (J.A. 90). at each landing was an access door that could be opened to observe or gain access to the interior of the chute. Stip. 15 (J.A. 11); Tr. 146, 163 (J.A. 114, 118). The doors were secured by two external latches held in place by eye bolts which had to be loosened to free the latch. Tr. 95, 163 (J.A. 101, 118).

    On June 6, 2000, near the end of the afternoon shift, the rock chute became plugged and the conveyor belt feeding the chute automatically stopped, as it was designed to do. Stip. 17 (J.A. 12); Tr. 168 (J.A. 119). Edwin Brady, the mine's conveyance manager, learned of the plug from two electricians. Tr. 154, 163, 186 (J.A. 116, 118, 124). Brady immediately traveled to the top of the chute and climbed down the ladder to the landing closest to the top. Tr. 166-67 (J.A. 119). Brady loosened the eye bolt, lifted the latch, opened the access door, and observed that rock was jammed inside. Brady testified that he secured the door and latch and climbed down to the other three landings, where he performed the same operation and observed the same condition of jammed rock all the way to the bottom of the chute. Tr. 166-67, 204-06 (J.A. 119, 128-29).

    At the bottom of the chute, Brady met two members of the production crew, beltmen Craig Bricker and Rick Fadely. Stip. 18 (J.A. 12); Tr. 169, 170, 189 (J.A. 120, 125). Brady instructed Fadely to climb to the lowest landing, open the access door, and try prying the jammed rock loose with a steel bar. Tr. 169 (J.A. 120). Fadely attempted unsuccessfully to loosen the jammed rock in this manner. Brady then suggested that the men attempt to unplug the chute with water, and took Bricker with him to get a hose. Tr. 172 (J.A. 120).

    Kevin Olson, the acting shift foreman, also became aware that the rock chute was plugged. Tr. 26, 206 (J.A. 84, 129). At the beginning of the evening shift, Olson assigned Matthew Winey, the production crew foreman, to go to the bottom of the chute and get it unplugged. Tr. 26, 190, 209, 213-14, 243 (J.A. 84, 125, 130, 131, 139). Olson did not tell Winey how to perform this assignment. Winey instructed the members of his crew to travel to the bottom of the chute, where they arrived at different times. Tr. 214-15, 225 (J.A. 131-32, 134). [10] No one on Winey's crew had ever been on the chute ladder before. Tr. 188-89 (J.A. 124-25).

    When Winey arrived at the bottom of the chute, Bricker and Fadely were already helping Brady connect the sections of the hose. Tr. 191 (J.A. 125). Eric Hough, another member of Winey's crew, was also present. Tr. 174 (J.A. 121). See Tr. 211, 213 (J.A. 131). Fadely and Winey climbed to the lowest level with the hose. Tr. 215 (J.A. 132). Winey took the hose and attempted to spray the jammed material loose, but Fadely took the hose from Winey when Winey began splashing water onto himself and Fadely. Tr. 191-92, 216, 223, 225-26 (J.A. 125, 132, 134). At the same time, Brady began to hit the bottom of the chute with a hammer. After about five minutes of applying both approaches, the jammed material started to move. At no time before or during the unplugging operation did any miner receive safety training with respect to the operation. Tr. 192, 224, 225 (J.A. 125, 134).

    Kyle Webb was a 26-year-old miner on Winey's crew. Tr. 94 (J.A. 101). At some point shortly before the jammed material started to move, Webb climbed the ladder past Winey and Fadely. Stip. 19 (J.A. 12); Tr. 80, 132, 140, 216 (J.A. 97, 110, 112, 132). Winey observed Webb climb past him. Tr. 216 (J.A. 132). No one, however, asked Webb where he was going or what he was doing, cautioned him, or tried to stop him. Tr. 226 (J.A. 134).

    About five minutes after Webb climbed the ladder past Winey and Fadely, and almost simultaneously with when the jammed rock started to move in the chute, Webb fell from above and rock started to fall around the ladder between the chute and the shaft. Stip. 20 (J.A. 12); Tr. 217-18, 226 (J.A. 132, 134). The top access door had come open and, as the material in the chute started to move, it spilled out the open door and off the platform. Stip. 20 (J.A. 12); Tr. 26, 175 (J.A. 84, 121). [11] Webb fell past Winey and Fadely and landed on the bottom landing, and rock fell on top of him. Tr. 49, 80 (J.A. 90, 97). Fadely and Winey took cover under the landing by which they were working. An electrician at the top of the chute heard the miners yelling from below, climbed down the ladder, and closed the access door. Tr. 176, 218 (J.A. 121, 132). Efforts to rescue Webb then began. Webb was airlifted to a hospital, where he was diagnosed with a fractured skull and other serious injuries. Tr. 83, 115 (J.A. 98, 106).

    MSHA immediately began an accident investigation under the lead of Inspector Phillip Gibson. Tr. 18-19 (J.A. 82). Gibson inspected the rock chute and the site of the accident. Tr. 20 (J.A. 82). After MSHA's investigators interviewed Winey, Fadely, Brady, and two members of Brady's crew, they reviewed the mine's training records. Tr. 25, 32, 38 (J.A. 84, 85, 87). They determined that no miner who engaged in unplugging the chute on June 6, 2000, had received task training in that activity.

    Twentymile completed an accident investigation form and filed it with MSHA. The form was signed by Production Crew Forman Winey and stated that the "task being performed" at the time of the incident was "cleaning plugged chute," but left incomplete the line indicating the person's "experience at [the] task" and whether the person had been "task-trained." Ex. G-11 (J.A. 41); Tr. 86-87, 114-15, 221, 238 (J.A. 99, 106, 133, 137). [12] The form stated that the operator "should have planned and talked more" to prevent accidents such as the one that occurred. Ex. G-11 (J.A. 41); Tr. 117, 239 (J.A. 107, 138). Twentymile's required training plan, which had not been updated since 1993, contained nothing about task training in chute maintenance. Ex. G-13 (J.A. 64-65); Tr. 127-28, 285 (J.A. 109, 149).

    On the basis of MSHA's investigation, the interviews, and the relevant records, Inspector Gibson issued a Section 104(g)(1) order on June 16, 2000, alleging that Twentymile committed a significant and substantial violation of 30 C.F.R. § 48.7(c) when it permitted miners to unplug the rock chute without having received task training. Stip. 21 (J.A. 12-13); Tr. 39 (J.A. 87). On July 11, 2000, Twentymile filed a notice of contest. Tr. 88 (J.A. 99). On August 1, 2000, the judge stayed the contest proceeding pending the issuance of a proposed civil penalty but permitted the parties to continue discovery. Tr. 88 (J.A. 99). On January 4, 2001, MSHA issued its accident investigation report. Ex. G-5 (J.A. 17-32). The MSHA district office forwarded the accident investigation report and a special assessment form regarding the violation alleged in the order to MSHA's assessment office on July 31, 2001, and the assessment office issued a proposed penalty on November 9, 2001. Tr. 76-77 (J.A. 96-97).

SUMMARY OF ARGUMENT

    The issue in this case is whether, under the Mine Act, the Commission can affirm a violation of a mandatory standard cited by the Secretary but vacate the civil penalty assessed for the violation, and order that no penalty be assessed, because of the amount of time it took the Secretary to propose the penalty. The Commission majority concluded that "the extraordinary remedy of vacating the civil penalty" (26 FMSHRC at 685 (J.A. 191)) was warranted by the circumstances surrounding the Secretary's proposal of a penalty in this case -- an action unprecedented in more than 25 years of Mine Act litigation before the Commission.

    The Commission majority's action in vacating the civil penalty ignored the well-developed body of case law holding that, because of the public interest in seeing that important public rights are enforced, a failure to comply with a statutory procedural requirement does not void subsequent agency enforcement action unless there is an indication that Congress intended to remove the power to enforce the statute, especially where there are less drastic remedies available. The plain language of Section 105(a) of the Mine Act and its legislative history indicate that the "reasonable time" provision is directory rather than a jurisdictional mandate, failure to comply with which can vitiate the penalty proceeding.

    This principle is supported by the language of Sections 110(a) and 110(i) of the Act, which plainly indicate that a penalty must be assessed for all violations of the Mine Act and Mine Act standards and that, in assessing penalties, the Commission can only consider six specified factors. The majority's action in vacating the penalty for Twentymile's violation is also internally inconsistent: if the prompt imposition of a penalty is vital to the success of the Mine Act's enforcement scheme, the imposition of no penalty utterly defeats that enforcement scheme.

    Even if the Commission could lawfully vacate the civil penalty because of the amount of time it took the Secretary to propose a penalty, the Commission majority erred in vacating the penalty without first considering whether Twentymile was prejudiced by the amount of time it took to propose the penalty. It is undisputed that Twentymile was not prejudiced.

    In addition, the Commission majority erred in vacating the civil penalty because it miscalculated the amount of time it took the Secretary to propose the penalty. The "reasonable time" requirement of Section 105(a) of the Mine Act runs from the termination of MSHA's inspection or accident investigation. The majority erred in calculating the amount of time the Secretary took to propose a penalty from the time Twentymile was cited, rather than from the time the accident investigation report was complete and the investigation terminated.

    Finally, the Commission majority erred by substituting its view of what constituted adequate cause for any delay by the Secretary in proposing a civil penalty for the view of the judge, who heard the evidence and weighed the facts. The majority improperly found that the amount of time the Secretary took to propose a penalty was unreasonable "as a matter of law," rather than examining the record to determine whether substantial evidence supported the judge's finding to the contrary.

ARGUMENT

IN REFUSING TO ASSESS A PENALTY FOR TWENTYMILE'S VIOLATION OF A STANDARD, THE COMMISSION DISREGARDED ESTABLISHED PRINCIPLES OF ADMINISTRATIVE LAW AND THE PENALTY PROVISIONS OF THE MINE ACT

A.    Applicable Principles and Standard of Review

    In construing a statute, the Court "looks first for the plain meaning of the text." United States v. Barnes, 295 F.3d 1354, 1359 (D.C. Cir. 2002). Accord Bullcreek v. NRC, 359 F.3d 536, 541 (D.C. Cir. 2004). If the language of the statute has a "plain and unambiguous meaning," the Court's inquiry ends so long as the resulting "statutory scheme is coherent and consistent." Barnes, 295 F.3d at 1359 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal quotation marks omitted)). Accord Bullcreek, 359 F.3d at 541.

    In deciding whether a statute's meaning is plain, a court "must first exhaust the 'traditional tools of statutory construction' to determine whether Congress has spoken to the precise question at issue." Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). "The traditional tools include examination of the statute's text, legislative history, and structure, as well as its purpose." Bell Atlantic Telephone Companies v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (internal citations omitted). "If this search yields a clear result, then Congress has expressed its intention as to the question * * *." Ibid.

    "[W]hen the statute is silent or ambiguous with respect to the specific issue, the question for [the] court * * * is whether the Secretary's interpretation is a permissible construction of the statute." Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (quoting Secretary of Labor v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989) (internal quotation marks omitted)). The Court should defer to "a reasonable interpretation" by the agency. Excel, 334 F.3d at 6 (quoting Chevron, 467 U.S. at 844). "Moreover, in the statutory scheme of the Mine act, 'the Secretary's litigation position before [the Commission] is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a * * * health and safety standard,' and is therefore deserving of deference." Excel, 334 F.3d at 6 (quoting RAG Cumberland Resources LP v. FMSHRC, 272 F.3d 590, 596 n.9. (D.C. Cir. 2001) (internal quotation marks omitted)).

B.    The Role of Penalties in Enforcement of the Mine Act

    In Coal Employment Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989), this Court recognized that Congress intended the imposition of adequate civil penalties to be the fundamental mechanism for enforcing the Mine act. Examining the legislative history of the Mine Act, the Court stated:

Congress maintained and upgraded the civil penalty scheme of the Federal Coal Mine Health and Safety Act of 1969 ("Coal Act") in order to "induce those officials responsible for the operation of a mine to comply with the Act and its standards." Indeed, the sponsor of the 1977 Mine Act singled out the civil penalty as "the mechanism for encouraging operator compliance with safety and health standards." * * *. The Supreme Court as well has recognized that "[t]he importance of [the civil penalty provision] in the enforcement of the [Coal] Act cannot be overstated" because monetary penalties provide a "deterrence" that necessarily infrequent inspections cannot generate. Thus, Congress envisioned penalties that would "be of an amount which is sufficient to make it more economical for an operator to comply with the Act's requirements than it is to pay the penalties assessed and continue to operate while not in compliance."

Coal Employment Project, 889 F.2d at 1132-33 (internal citations omitted) (emphasis supplied).

C.    In Refusing to Assess a Penalty for Twentymile's Violation of a Standard, the Commission Disregarded the Principles Set Forth by the Supreme Court in Brock v. Pierce County

    The Commission's refusal to assess a penalty for Twentymile's violation of a standard in this case is subject to the principles set forth by the Supreme Court in Brock v. Pierce County, 476 U.S. 253 (1986). In Brock, the Court addressed whether the Secretary of Labor lost the authority to recover misused funds under the Comprehensive Employment and Training Act because he failed to issue a final determination of misuse within the 120-day period specified for such action in the statute. The Court began its analysis by stating:

This Court has frequently articulated the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided. We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.

476 U.S. at 260 (citations, internal quotation marks, and footnote omitted). The Court then analyzed the statutory language and design and the legislative history and determined that there was "simply no indication * * * that Congress intended to remove the Secretary's enforcement powers" if he failed to issue a final determination within the 120-day period. 476 U.S. at 266. The Court concluded that Congress intended the 120-day period "to spur the Secretary to action, not to limit the scope of his authority." 476 U.S. at 265.

    Since Brock, the Supreme Court has never construed a statutory provision stating that the Government shall act within a specified time period, without more, as a jurisdictional limit precluding later action. Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-59 (2003) (summarizing cases). This Court has also never construed such a provision as divesting the Government of authority to act. See, e.g., Bro. of Railway Carmen Div., Transportation Communications Int’l Union v. Pena, 64 F.3d 702, 704 (D.C. Cir. 1995); Gottlieb v. Pena, 41 F.3d 730, 733-37 (D.C. Cir. 1994) (summarizing cases). Underlying all of the case law is the principle that "[t]here is no presumption or general rule that for every duty imposed upon the * * * Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent." United States v. Montalvo-Murillo, 495 U.S. 711, 717 (1990). When Congress has not affirmatively indicated that the Government's failure to act within a specified time limit precludes it from subsequently acting to enforce the law and protect the public, courts should not, and cannot, "invent a remedy to satisfy some perceived need to coerce * * * the Government into complying with the statutory time limit[.]" Montalvo-Murillo, 495 U.S. at 721. Accord Brock, 476 U.S. at 265-66; Gottlieb, 41 F.3d at 734, 736.

    The question in this case is whether there is "a clear indication" (Railway Carmen, 64 F.3d at 704) that Congress intended to authorize the Commission to remedy the Secretary's purported failure to propose a penalty "within a reasonable time" under Section 105(a) of the Mine Act by refusing to assess a penalty and thereby depriving the Secretary of the power to enforce the Act through the imposition of a penalty. The Secretary submits that there is "simply no indication" (Brock, 476 U.S. at 266) that Congress intended to authorize the Commission to devise such a drastic remedy. [13] On the contrary, the Secretary submits, there are a number of strong indications that it did not.

    The foregoing analysis is supported most explicitly by the text and the legislative history of Section 105(a) itself. Section 105(a) merely states that the Secretary shall propose a penalty "within a reasonable time after the termination of [an] inspection or investigation" that results in the issuance of a citation or order. Section 105(a) specifies no consequence if the Secretary fails to propose a penalty "within a reasonable time." Significantly -- indeed, the Secretary submits, dispositively -- the report of the Senate Committee that drafted the provision that became Section 105(a) stated:

After an inspection, the Secretary shall within a reasonable time serve the operator by certified mail with the proposed penalty to be assessed for any violations. The bill requires that the representative of miners at the mine also be served with the penalty proposal. To promote fairness to operators and miners and encourage improved mine safety and health generally, such penalty proposals must be forwarded to the operator and the miner representative promptly. The Committee notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not be possible, and the Committee does not expect that the failure to propose a penalty promptly shall vitiate any proposed penalty proceeding.

S. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978) (emphasis supplied). Refusing to assess a penalty for an affirmed violation is "vitiat[ing] [a] proposed penalty proceeding." [14]

    In addition, the Secretary's analysis is supported by Sections 110(a) and 110(i) of the Mine Act. Section 110(a) states that "[t]he operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of th[e] Act, shall be assessed a civil penalty by the Secretary * * *." The first sentence of Section 110(i) states that "[t]he Commission shall have authority to assess all civil penalties provided in th[e] Act." Both the courts and the Commission have interpreted the quoted provisions to mean that a penalty must be assessed for every violation of a standard. Asarco, Inc.-Northwestern Mining Dept. v. FMSHRC, 868 F.2d 1195, 1197-98 (10th Cir. 1989); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Spurlock Mining Co., 16 FMSHRC 697, 699 (1996); Tazco, Inc., 3 FMSHRC 1895, 1896-97 (1981). [15] As the Commission explained in Tazco after analyzing the quoted provisions and the relevant legislative history:

The language of the two subsections -- indeed, the language of all of section 110 -- is plainly based on the premise that a penalty will be assessed for each violation at both the Secretarial and Commission levels. * * *.
[B]oth the text and legislative history of section 110 make clear that the Secretary must propose a penalty assessment for each alleged violation and that the Commission and its judges must assess some penalty for each violation found.

3 FMSHRC at 1896-97 (emphasis supplied). Accord Old Ben Coal Co., 7 FMSHRC 205, 208 (1985), and cases there cited. "When a violation occurs, a penalty follows." Asarco, 868 F.2d at 1197.

    The Secretary's analysis is also supported by the second sentence of Section 110(i). That sentence states that, in assessing penalties, the Commission "shall consider" six factors: (1) the operator's history of previous violations, (2) the appropriateness of the penalty to the size of the operator's business, (3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the operator's good faith in attempting to achieve rapid compliance after notification of the violation. It is an established principle of statutory construction that the "'mention of one thing implies the exclusion of another thing.'" Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997) (quoting Ethyl Corp. v. EPA, 51 F.3d 1053, 1061 (D.C. Cir. 1995)). Because Section 110(i) specifies the six factors the Commission shall consider in assessing penalties, the Commission may not consider others. See Ethyl, 51 F.3d at 1058, 1061 (because the statute specified the factors on which EPA was to base its decisions, EPA could not consider others). The Commission has recognized as much and has repeatedly held that, in assessing penalties, it and its judges may not consider factors other than the six factors specified in Section 110(i). See, e.g., RAG Cumberland Resources LP, 26 FMSHRC 639, 658-59 (2004) (the judge erred in considering the breach of a Mine Act purpose), petition for review on other grounds filed December 20, 2004 (D.C. Cir. No. 04-1427); Ambrosia Coal & Construction Co., 18 FMSHRC 1552, 1565 (1996) (the judge erred in considering deterrence). If the Commission may not assess a penalty on the basis that that penalty will deter the operator from committing future violations, it may not do what it did here: refuse to assess a penalty on the basis that that refusal will coerce the Secretary into acting more promptly in future cases.

    In refusing to assess a penalty in this case, the Commission majority made no mention of the principles set forth in Brock. Instead, the majority attempted to justify its refusal primarily on the ground that the first sentence of Section 110(i) states that "[t]he Commission shall have the authority to assess all civil penalties provided in th[e] Act." 26 FMSHRC at 687 (J.A. 193). The majority's analysis ignores the principle that "'the meaning of statutory language, plain or not, depends on context,'" and that a court "charged with understanding the relationship between two different provisions within the same statute * * * must analyze the language of each to make sense of the whole." Bell Atlantic Telephone, 131 F.3d at 1047 (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)). Accord Halverson, 129 F.3d at 184-86. When the first sentence of Section 110(i) is read in context -- that is, read in conjunction with Section 110(a) and with the second sentence of Section 110(i) -- it compels the conclusion that the Commission must assess a penalty for every violation. The fact that Section 110(i) gives the Commission the authority to assess penalties does not mean that the Commission has the authority to refuse to assess penalties.

    More broadly, the Commission majority attempted to justify its refusal to assess a penalty on the ground that such a sanction was necessary to vindicate "the overriding purposes" and "uphold the integrity" of the Mine Act. 26 FMSHRC at 686-88 (J.A. 192-94). The short answer to the majority's approach is that the balancing of interests under the Act "is a task for Congress" (Brock, 476 U.S. at 266), not a task for the Commission, and Congress struck a different balance. If Congress had intended to authorize Section 105(a)'s "reasonable time" provision to be applied as the Commission applied it here -- an application that "bestow[s] upon the [mine operator] a windfall" and makes the safety of miners "forfeit to the accident of noncompliance with statutory time limits" (Montalvo- Murillo, 495 U.S. at 720) -- Congress would have said so. It did not. [16]

    Finally, the Commission majority attempted to justify its refusal to assess a penalty on the ground that it was leaving the finding of a violation intact and that finding would become part of the operator's history of violations in assessing future penalties. 26 FMSHRC at 685 (J.A. 191). The majority's rationalization is internally inconsistent: if prompt imposition of a penalty is "vital to the success" of the statutory program (26 FMSHRC at 686 (J.A. 192)), refusal to assess a penalty fundamentally undercuts that program. More importantly, the majority's rationalization is inconsistent with Congress' intent: as this Court has recognized, Congress intended the imposition of a sufficient civil penalty to be "the mechanism for encouraging operator compliance with safety and health standards." Coal Employment Project, 889 F.2d at 1132 (internal quotation marks and citation to legislative history omitted) (emphasis supplied). [17] See 26 FMSHRC at 696 (J.A. 202) (dissent) (refusal to assess a penalty "can only erode a miner's confidence in the agency's ability to ensure that violations of mandatory health and safety standards will be subject to an appropriate sanction").

    In sum, the Secretary submits that the meaning of the statute is plain: Congress did not intend to authorize the Commission to remedy the Secretary's failure to propose a penalty "within a reasonable time" by resorting to the drastic remedy of refusing to assess any penalty at all. If the meaning of the statute is not plain -- that is, if Congress' intent is not unambiguous -- the Secretary's analysis is entitled to acceptance because it is reasonable.

D.    In Refusing to Consider the Fact that Twentymile Was Not Prejudiced by the Amount of Time It Took the Secretary to Propose a Penalty, the Commission Disregarded the Principles Set Forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick associates Ltd. Partnership

    Even if the Commission could lawfully refuse to assess any penalty for an operator's violation under the Mine Act because of the amount of time it took the Secretary to propose a penalty, it could not properly do so without first considering whether the operator was prejudiced by that amount of time. In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court addressed when to excuse a party's failure to comply with a court-ordered filing deadline under the Bankruptcy Code -- an issue analogous to the issue in this case. The Court concluded as follows:

Because Congress has provided no other guideposts for determining what sorts of neglect will be "excusable," we conclude that the determination is at bottom an equitable one, taking into account all relevant circumstances surrounding the party's omission. These include * * * the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.
* * * *
* * * [T]he lack of any prejudice to the debtor or to the interests of efficient judicial administration, combined with the good faith of respondents and their counsel, weigh strongly in favor of permitting the tardy claim.

507 U.S. at 395, 398 (footnotes omitted) (emphases supplied). In so concluding, the majority specifically rejected the dissent's position that the Court should "permit judges to take account of the full range of equitable considerations only if they have first made a threshold determination that the movant is 'sufficiently blameless' in the delay * * *." Id. at 395 n.14. Lower courts have applied the principles set forth in Pioneer to a variety of procedural situations and have emphasized that, under Pioneer, the absence of any prejudice to the moving party or the interests of efficient judicial administration, and the good faith of the nonmoving party, should be given particular consideration in deciding whether to grant a motion to dismiss. See, e.g., George Harms Construction Co. v. Secretary of Labor, 371 F.3d 156, 163-64 (3d Cir. 2004) (applying Fed. R. Civ. P. 60(b)(1) to an Occupational Safety and Health Review Commission proceeding); United States v. Brown, 133 F.3d 993, 996-97 (7th Cir.) (applying Fed. R. App. P. 4(b) to a criminal appeal), cert. denied, 523 U.S. 1131 (1998)).

    Courts have likewise held that prejudice is a critical factor when considering whether to impose dismissal or default for procedural errors under Federal Rules of Civil Procedure 55 and 60(b). Panhandle Co-op. Ass'n, Bridgeport, Nebraska v. EPA, 771 F.2d 1149, 1153 (8th Cir. 1985); Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976). In cases involving delay in issuing criminal indictments and delay in issuing citations under the Occupational Safety and Health Act, the courts have consistently held that the objecting party must show prejudice. See, e.g., United States v. Rein, 848 F.2d 777, 781 (7th Cir. 1988) (criminal proceeding); Havens Steel Co. v. OSHRC, 738 F.2d 397, 399 (10th Cir. 1984), and Donovan v. Royal Logging, 645 F.2d 822, 827-28 (9th Cir. 1981) (OSHA proceedings).

    Finally, the Commission itself has employed a similar sort of analysis in addressing a similar sort of situation under the Mine Act. In Old Dominion Power Co., 6 FMSHRC 1886 (1984), aff'd on other grounds, 772 F.2d 92 (4th Cir. 1985), the operator argued that a citation should be dismissed on the ground that it was not issued with "reasonable promptness" within the meaning of Section 104(a) of the Mine Act, 30 U.S.C. § 814(a). The Commission rejected the operator's argument and emphasized:

Most important, * * * Old Dominion has not shown that it was prejudiced by the delay. Indeed, Old Dominion was aware from the time of its employee's fatal accident that an investigation involving its actions was being conducted by MSHA, and it has been given a full and fair opportunity to participate in all stages of this proceeding.

Id. at 1894 (emphasis supplied).

    In direct contravention of the principles set forth above, the Commission majority in this case (26 FMSHRC at 682 (J.A. 188)), and the Commission in previous cases, has held that a showing of prejudice to the operator is not a prerequisite to an action by the Commission vitiating a proposed penalty proceeding, and that such prejudice is to be considered only after a finding of adequate cause for delay in proposing the penalty. See Steele Branch Mining, 18 FMSHRC 6, 14 (1996) (adopting the two-step analysis set forth by the Commission in Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2092-93 (1993), aff'd on other grounds, 57 F.3d 982 (10th Cir. 1995)). The Commission majority held that "[t]he judge in this case determined that the lapse in time between the order and the penalty proposal was not prejudicial to Twentymile, 25 FMSHRC at 388 [J.A. 168], and the operator does not challenge that conclusion on review." 26 FMSHRC at 682-83 (J.A. 188-89). For that reason and the reasons set forth above, the majority erred in vacating the civil penalty in this case. Such an approach is particularly inappropriate under the Mine Act because it "'represents a drastic course [that] would short circuit the penalty process, and hence a major aspect of the Mine Act's enforcement scheme'" (Rhone-Poulenc, 57 F.3d at 984 (quoting Salt Lake County Road Dept., 3 FMSHRC 1714, 1716 (1981)), even when, as the Commission majority acknowledged in this case (26 FMHRC at 682-83 (J.A. 188-89)), it is undisputed that the operator suffered no prejudice. For this reason too, the Commission's action in this case is inconsistent with effective enforcement of the Mine Act.

E.    In Calculating the Time It Took the Secretary to Propose a Penalty as Starting When the Order Was Issued Instead of When the Accident Investigation Was Terminated, the Commission Disregarded the Terms of Section 105(a) of the Mine Act

    Even if the Commission did not err for either of the reasons advanced above, it erred because, in calculating the time it took the Secretary to propose a penalty in this case, it impermissibly added an extra seven months. Section 105(a) of the Mine Act states in relevant part:

If, after an inspection or investigation, the Secretary issues a citation or order under section 104, [she] shall, within a reasonable time after the termination of such inspection or investigation, notify the operator * * * of the civil penalty proposed * * *.

30 U.S.C. § 815(a) (emphases supplied). Under the plain language of Section 105(a), a "reasonable time" is to be calculated starting from the termination of the inspection or investigation.

    In this case, the Secretary submits, the termination of the investigation occurred when the accident investigation report was issued. The investigation report was issued on January 4, 2001, and the Secretary proposed a penalty on November 9, 2001 -- ten months later. The investigation report was not issued, and the investigation thus was not terminated, until January 4, 2001, because the primary reviewer of the report at the MSHA district office was unable to begin working on the report until October 2000, after which he sought additional information about the accident in November 2000 and then forwarded the report to two assistant district managers and the district manager for review. Tr. 75-78 (J.A. 96-97).

    The Commission majority found that the Secretary took 17 months to propose a penalty because it calculated the Section 105(a) "reasonable time" starting from the issuance of the underlying order on June 16, 2000. 26 FMSHRC at 685 (J.A. 191). In effect, the majority found that the termination of the investigation occurred when the order was issued. The decision as to when MSHA's investigation is complete, however, is committed to MSHA's unreviewable discretion. See Heckler v. Chaney, 470 U.S. 821, 835 (1985) (the Food, Drug, and Cosmetic act's investigation and enforcement provisions "commit complete discretion to the Secretary [of HHS] to decide how and when they should be exercised"); North Carolina Utilities Comm'n v. FERC, 653 F.2d 655, 669 (D.C. Cir. 1981) (FERC's decision "to accept or reject an investigatory report * * * is a necessary adjunct to the agency's unreviewable discretion to recommend or decline enforcement or rulemaking proceedings"). Even if MSHA's decision is reviewable, it is entitled to special deference because it "pertains to an agency's exercise of its enforcement discretion -- an area in which the courts have traditionally been most reluctant to interfere." Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (citing, inter alia, Heckler v. Chaney). In evaluating "why it took seven months to finalize the accident report" and determining that the accident investigation was complete seven months before the accident report was issued (26 FMSHRC at 683 (J.A. 189)), the Commission majority impermissibly intruded on the Secretary's enforcement discretion and disregarded the terms of Section 105(a).

F.    In Substituting Its View of the Facts for the Judge's View, the Commission Exceeded Its Authority Under Section 113(d)(2)(A)(ii) of the Mine Act

    Finally, in reversing the judge's finding that the time it took the Secretary to propose a penalty in this case was reasonable, the Commission majority impermissibly applied a de novo standard of review and substituted its view of the facts for the judge's. The Commission may not substitute its own view of the facts "for the view the judge reasonably reached." Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 F.2d 86, 90-91 (D.C. Cir. 1983). Instead, under Section 113(d)(2)(A)(ii) of the Mine Act, the Commission is required to affirm a judge's findings of fact if they are supported by "substantial evidence." Ibid.

    In this case, the Commission attempted to circumvent Section 113(d)(2)(A)(ii)'s restriction on its review authority by suggesting that the "reasonable time" issue was "a matter of law." 26 FMSHRC at 684 (J.A. 190). It is apparent, however, that the issue was a question of fact. In analogous cases involving findings of "excusable neglect" under Federal Rule of Appellate Procedure 4(b) and Federal Rule of Civil Procedure 60(b), courts have applied a deferential "abuse of discretion" standard (see, e.g., Brown, 133 F.3d at 996, and Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)) and have emphasized that the trial judge "is in the best position to discern and assess all the facts, is vested with a large measure of discretion" (Twelve John Does, 841 F.2d at 1138), and must balance "'all relevant circumstances surrounding the party's omission.'" Brown, 133 F.3d at 996 (quoting Pioneer Investment Services, 507 U.S. at 395). The majority's own highly factual review of the "reasonable time" issue (26 FMSHRC at 683-85 (J.A. 189-91)), and the majority's finding that the time was unreasonable "under the circumstances" (26 FMSHRC at 684 (J.A. 190)), demonstrate that the "reasonable time" issue was a question of fact. As the dissenters recognized, the majority "cannot have it both ways": it cannot rely on the specific "circumstances" of this case and at the same time pretend that the issue presented is "a matter of law" subject to de novo review. 26 FMSHRC at 693-94 (J.A. 199-200).

CONCLUSION

    For the reasons stated above in Argument Section C, the Secretary requests that the Court reverse that portion of the decision of the Commission vacating the civil penalty for Twentymile's violation of 30 C.F.R. § 48.7(c) and remand the case for the Commission to reinstate the penalty assessed by the judge. [18] If the Court rejects that approach, for the reasons stated above in Argument Sections D through F, the Secretary requests that it vacate that portion of the Commission's decision and remand the case for the Commission to decide the "reasonable time" issue in accordance with the governing statutory provisions and case law principles set forth above.

Respectfully submitted,

HOWARD M. RADZELY
Solicitor of Labor

EDWARD P. CLAIR
Associate Solicitor

W. CHRISTIAN SCHUMANN
Counsel, Appellate Litigation

___signed____________
JERALD S. FEINGOLD
Attorney

U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Suite 2200
Arlington, VA 22209-2296
Telephone: (202) 693-9335

CERTIFICATE OF COMPLIANCE

    Pursuant to Fed. R. App. P. 32(a)(7)(B), (C), D.C. Cir. Rules 28(d) and 32(a)(2), and the Court's Order of January 12, 2005, I hereby certify that this Brief for the Secretary of Labor contains 11,262 words as determined by Word, the processing system used to prepare the brief.

___signed_______
Jerald S. Feingold
Attorney

CERTIFICATE OF SERVICE

    I certify that two copies of the foregoing Brief for the Secretary of Labor were served by overnight delivery this 28th day of March, 2005, on:

R. Henry Moore, Esq.
Jackson Kelly
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, Pennsylvania 15222

Thomas Stock, General Counsel
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., Suite 9500
Washington, D.C. 20001

___signed_______
Jerald S. Feingold
Attorney


Footnotes

[1]    A violation is "significant and substantial" if it is "of such nature as could significantly and substantially contribute to the cause and effect of a * * * mine safety or health hazard * * *." 30 U.S.C. § 814(d). If a violation is "significant and substantial," it may be subject to proposal of an increased civil penalty (see 30 C.F.R. § 100.3) and may, if followed by similar violations, lead to issuance of a withdrawal order. 30 U.S.C. § 814(d).

[2]    Section 104(g)(1) of the Mine Act provides that if an authorized representative of the Secretary

find[s] employed at a coal or other mine a miner who has not received the requisite safety training * * *, [he] shall issue an order under this section which declares such miner to be a hazard to himself and to others, and requiring that such miner be immediately withdrawn * * *, and be prohibited from entering such mine until [it is] determine[d] that such miner has received the training required * * *.

30 U.S.C. § 814(g)(1).

[3]    At oral argument, the Commission raised sua sponte the issue of whether the Secretary erred procedurally in issuing Twentymile an order under Section 104(g) of the Mine Act rather than a citation under Section 104 of the Act. A three-member Commission majority held that an order issued by the Secretary pursuant to Section 104(g) of the Mine Act must (1) identify with specificity the miners who must be withdrawn from the mine for failure to receive required training and (2) provide for the immediate withdrawal of the miners in question. Finding that the Section 104(g) order issued in this case was issued long after the violation had been abated, the majority modified the order to a citation with significant and substantial findings issued pursuant to Section 104(a) of the Act. 26 FMSHRC at 672-75 (J.A. 178-81). The majority then concluded that the citation, as so modified, and as amended at trial, was sufficiently specific to provide Twentymile with notice of the conditions at the mine that were the basis of the violation. 26 FMSHRC at 675-76 (J.A. 181-82). The remaining two Commissioners found it unnecessary to reach the issue of whether the Section 104(g) order should be modified to a Section 104(a) citation. 26 FMSHRC at 689 n.28, 693 n.29 (J.A. 195 n.28, 199 n. 29).

[4]    The majority determined that "there was nearly a 17-month delay from the date of the section 104(g) order, June 16, 2000, until the issuance of the proposed penalty assessment for the alleged violation on November 9, 2001." 26 FMSHRC at 683 (J.A. 189).

[5]    This resolution of the case had never been suggested by Twentymile and was not addressed in the parties' briefs or at oral argument before the Commission. Twentymile had requested that the case be dismissed outright.

[6]    Dissenting Commissioner Young agreed with the majority that, if the Secretary's delay in proposing a penalty is unreasonable or results in prejudice to the operator, the Commission may vacate the penalty. 26 FMSHRC at 693 n.30 (J.A. 199 n.30). Dissenting Commissioner Jordan saw no need to address the issue of whether the Commission may vacate a penalty because she found that there was no prejudice to Twentymile and that the judge properly found adequate cause for the delay in proposing the penalty. Ibid.

[7]    The crew worked together at the face producing coal by means of a continuous mining machine.

[8]    Maintenance on the belt conveyor system was performed on a daily basis, and transfer points such as the rock chute were part of the mine's conveyor system. Tr. 192-93, 227-28, 230 (J.A. 125-26, 135). Such maintenance was performed by beltmen and was considered a normal "task" at the mine, but the work of beltmen was not included in the tasks set forth in the mine's training plan. Ex. G-13 (J.A. 64-65); Tr. 288-89 (J.A. 150).

[9]    After the accident, Twentymile took several corrective actions to lessen the likelihood of the rock chute becoming plugged, including the installation of additional plug indication switches at each access door, a permanently mounted washing system, and two electromagnetic vibrators. Ex. R-5 (J.A. 75-76); Tr. 179-80 (J.A. 122).

[10]    Some members of Winey's crew did not arrive at the chute until after the accident. Tr. 225 (J.A. 134).

[11]    It was never determined how the top access door came to be open or where Webb was situated on the ladder at the time of the accident. Tr. 49, 264 (J.A. 90, 144).

[12]    The report also listed the five other miners named by MSHA in the amended order as witnesses to the accident, placing them at the scene. Ex. G-11 (J.A. 41); Tr. 116 (J.A. 106).

[13]    It should be noted that in this case, as in Brock, there were "less drastic remedies available for failure to meet a statutory deadline." Brock, 476 U.S. at 260. If Twentymile was concerned that the Secretary's delay in proposing a penalty was defeating its ability to obtain a penalty proposal that could be reviewed by the Commission and a court of appeals, it could have applied for a court order compelling the Secretary to propose a penalty. See Gottlieb, 41 F.3d at 734 (citing Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)). If Twentymile was concerned that the Secretary's delay in proposing a penalty was prejudicing its ability to defend itself against the underlying citation, it could have asked the Commission judge to lift his order staying the merits proceeding pending the proposal of a penalty -- an order to which Twentymile had consented. Twentymile did not ask the judge to lift the stay until august 9, 2001, almost 14 months after the order was issued, when it did so in response to the judge's status inquiry. August 9, 2001, letter of R. Henry Moore (J.A. 8).

[14]    Dismissing a penalty proceeding outright (which is what Twentymile asked the judge in this case to do), or assessing a penalty and then vacating it (which is what a Commission judge did in a case decided after the Commission decided this case, Sedgman and David Gill, FMSHRC Nos. SE 2002-111, etc., petitions for discretionary review granted, Dec. 10, 2004), are also "vitiat[ing] [a] proposed penalty proceeding."

[15]    This Court has not directly addressed the proposition cited above. In Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 714-16 (D.C. Cir. 1989), the Court questioned whether Section 110 by itself provides a basis for imposing vicarious liability under the Mine Act. That proposition is different from the cited proposition, and the Court's analysis is in no way inconsistent with the cited proposition.

[16]    The Commission speculated that Congress "would not find parity" if the Secretary were allowed to take 17 months to propose a penalty while the operator was statutorily required to contest the penalty within 30 days. 26 FMSHRC at 686-87 and n.27 (J.A. 192-93 and n.27) (citing Section 105(a) of the Act). The Commission's speculation represents "a classic apples-and-oranges-mix[.]" Time Warner Entertainment Co., L.P. v. FCC, 240 F.3d 1126, 1141 (D.C. Cir.), cert. denied sub nom. Consumer Federation of America v. FCC, 534 U.S. 1054 (2001). In deciding what penalty to propose, the Secretary must carefully consider and weigh the six factors specified in Section 105(b)(1)(B) of the Act (the same factors specified in Section 110(i)); in deciding whether to contest a proposed penalty, the operator need only make a yes-or-no litigation decision and file a brief notice of contest. See Section 105(a) of the Act. In proposing a penalty, the Secretary acts to enforce an important public interest; in contesting a penalty, the operator does not. For both of these reasons, the fact that Congress imposed a 30-day requirement on the filing of penalty contests is in no way inconsistent with the conclusion that Congress intended to impose a longer, and directory rather than mandatory, time period on the issuance of penalty proposals. See Gottlieb, 41 F.3d at 735-36 (to accommodate the Secretary of Transportation's stated need for flexibility "to ensure the just and fair handling of cases[,]" and "[i]n view of the complexities likely to be presented in individual cases and the competing interests at stake, Congress understandably required the Secretary to act promptly, but also declined to dictate what would happen if the Secretary failed to do so").

[17]    The Secretary fully appreciates the importance of the prompt imposition of penalties, and has implemented several measures to ensure that MSHA proposes penalties promptly. The statutory responsibility for ensuring that MSHA proposes penalties promptly, however, is vested with the Secretary, not with the Commission. See United States v. James Daniel Good Real Property, 510 U.S. 43, 64-65 (1993).

[18]    Assuming that the Court affirms Twentymile's violation of the training standard as a "significant and substantial" violation, the parties have not contested that the amount of the penalty assessed by the judge is appropriate for such a violation.