Tug of War: MSHA’s power to vacate citations

By |  September 16, 2016

A mine operator contests proposed Mine Safety & Health Administration (MSHA) penalties by sending a notice of contest to MSHA.

From there, the agency must file a petition for assessment of civil penalty with the Federal Mine Safety and Health Review Commission. Because under the Federal Mine Safety and Health Act, “The Commission shall have authority to assess all civil penalties provided in this Act.” (MSHA cannot finalize penalties. However, if no contest is filed, a proposed penalty automatically becomes a final order of the commission.)

msha-logoThe commission is an independent agency comprised of five commissioners appointed by the president. New cases are initially assigned to administrative law judges employed by the commission. The judges preside at trials and make pre-trial and post-trial rulings. Ultimately, a judge must issue an order determining whether and what penalties are appropriate.

The judge first decides whether there is a violation. If not, there will be no penalty. If there is a violation, the judge will consider penalty assessment criteria established by Congress.

  1. To what extent was the company negligent?
  2. What violations has the company had in the past?
  3. How serious was the violation in terms of potential harm?
  4. Was there good faith in attempting rapid compliance after citation?
  5. What is an appropriate penalty considering the size of the company?
  6. Will the penalty affect the operator’s ability to continue in business?

Following a judge’s decision, any party may petition the five-member commission to review the decision. Most cases do not get this far. Most cases do not even go to trial before a judge. They settle.

Settlements happen after parties evaluate strengths and weaknesses of their own cases and consider evidence and arguments the opposing party will likely present. Settlement agreements must be submitted to the judge for approval. The Federal Mine Safety and Health Act states: “No proposed penalty which has been contested before the Commission … shall be compromised, mitigated, or settled except with the approval of the Commission.”

Solicitor for MSHA

MSHA is represented by attorneys from the Office of the Solicitor within the U.S. Department of Labor. (Sometimes, conference and litigation officers – MSHA employees authorized to appear before the commission – represent MSHA instead of the solicitor.) Whoever acts as counsel must present evidence to prove a violation and establish appropriateness of any penalty under the six criteria.

The penalty initially proposed by MSHA weighs the six criteria, usually based on points assigned to inspector findings on negligence and gravity and other information. In settlement, MSHA may agree to a lowering of penalties it proposed. The solicitor will prepare a draft motion for the company’s review. If the motion is satisfactory, it will be filed with the judge for approval.

What does the motion contain? It has become commonplace for MSHA to present justifications for why it reduces any penalty it originally assessed. This is generally done on a citation-by-citation basis. Perhaps a reduction in negligence is warranted, or a reduction in gravity charged. A summary of reasons will be presented to the judge to support corresponding penalty reductions.

Can MSHA insist the judge approve any penalties in a settlement motion submitted by the solicitor? Judge William B. Moran and other administrative law judges have rejected motions when they believe sufficient justification has not been provided. A recent ruling Judge Moran made rejecting a percentage reduction in a case with multiple citations was certified for interlocutory review by the commissioners.

MSHA and the judge are at loggerheads. MSHA generates proposed penalties and claims discretion to lower penalties later without citation-by-citation justification to the judge from whom approval is requested.

By law, MSHA can vacate a citation anytime and thereby dissolve any related penalty. MSHA claims a right to reduce penalties without modifying or vacating citations. Judge Moran has ruled that each penalty for a citation not vacated must be justified. He has refused to approve settlements without such justification.

There are practical implications. Providing justification for every citation can slow settlement and increase litigation expenses that MSHA and companies are trying to avoid. Oral argument was held by the commission on July 12, 2016, to be followed by a commission ruling.

Michael T. Heenan is with the national labor, employment and safety law firm Ogletree Deakins. His book MSHA Compliance Essentials is available in English and Spanish (2016). Email him at michael.heenan@odnss.com.

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