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Contesting citations from MSHA when all else fails

By and |  November 23, 2022
Headshots: Bill Doran and Margo Lopez

Doran and Lopez

There are multiple avenues, besides litigation, that operators can take to get an unfair citation corrected or, better yet, to prevent getting such a citation in the first place.

They include discussing enforcement concerns with Mine Safety & Health Administration (MSHA) management during the inspection or in an informal conference later. The best opportunity may be right up front in the field with inspectors – before they write citations. Close-out conferences with inspectors can be another option.

Sometimes, though, these avenues are not enough. In spite of all best efforts toward an early resolution, MSHA may refuse to make changes to citations. When this happens, it’s time to go to court.

The contest process

Litigating to challenge a citation or order – called a “contest” – can be a complex process.

Contesting typically begins by filing a penalty notice of contest with MSHA. This type of contest is due within 30 days of receipt of the proposed assessment of civil penalty from MSHA. Contesting a penalty automatically also contests the citation or order and all of its allegations – including negligence and gravity levels.

Operators also have the option of filing a pre-penalty contest of a citation or order within 30 days of its issuance. This is most often done to challenge a 107(a) imminent danger order, which does not have a penalty assessed that can later be contested.

There are other reasons to file a pre-penalty contest, such as to challenge MSHA’s abatement requirement or in other circumstances where you may not want to wait until the penalty is assessed to have an opportunity for a hearing with a judge.

Filing a pre-penalty contest does not automatically contest whatever penalty MSHA may later assess. For that, you must still file a penalty notice of contest.

All contest proceedings are litigated in a special administrative court. The Federal Mine Safety & Health Review Commission (FMSHRC, or the commission) is independent from the Department of Labor and MSHA. A contest case is decided in the first instance by an FMSHRC administrative law judge (ALJ). Hearings before the ALJ involve witness testimony and the introduction of exhibits, but there are no juries. The ALJ will issue a written decision, usually after the parties file post-hearing briefs presenting arguments on the facts and the law.

In contest cases, MSHA may be represented by an attorney from the U.S. Department of Labor’s Office of the Solicitor. In cases with simpler issues, MSHA may be represented by an MSHA conference litigation representative – usually a former inspector.

The party who lost the case before the ALJ may appeal the ALJ’s decision. The first opportunity for appeal is with the commission. At the appellate level, FMSHRC can consist of up to five commissioners who decide the appeal.

The commissioners are nominated by the president and confirmed by the Senate. They serve on the commission for up to six-year terms. They will issue a written decision, which may include concurring and dissenting opinions. The case is decided by majority vote. When there is a split decision, the ALJ’s decision stands.

If the commission decides not to hear the appeal or once it issues a final decision, any party seeking further appeal can file a petition for review with either the federal appellate court associated with the geographic location of the mine or with the U.S. Court of Appeals for the D.C. Circuit. These federal appellate courts are one level below the U.S. Supreme Court and decide many types of cases – not just mine safety cases.

A handful of MSHA cases each year are heard at this level of appeal. Further appeal may be made to the U.S. Supreme Court, but this court also has discretion to decide whether to accept the appeal.

The vast majority of contest cases are resolved relatively early in litigation. The ALJ typically requires the parties to engage in settlement negotiations soon after the judge is assigned to the case.

In this back-and-forth process, the parties can have an off-the-record discussion presenting their facts and arguments to one another through their counsel. Often, an agreement to settle can be reached, resulting in changes to the citations and penalties. But there is one more important step before a case can be closed: All settlements must be presented to the ALJ for approval.

Bill Doran and Margo Lopez are with the law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.


Featured Photo: P&Q Staff


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