FMSHRC Establishes Simplified Proceedings to Address Massive Caseload
By Chuck Newcom
The Federal Mine Safety & Health Review Commission (FMSHRC) has issued final rules establishing a pilot program for simplified proceedings with the goal of reducing its backlog of pending cases. The pilot program, scheduled to take effect March 1, 2011, will be evaluated after nine to twelve months to determine whether it should continue, be modified or be eliminated.
The FMSHRC's caseload has grown dramatically - from an annual average of 2300 new case filings between 2000 and 2005 to an annual average of 9200 filings in 2008 and 2009. The 2010 numbers were likely at that level or higher. Even with an increased number of Commission Administrative Law Judges (ALJs) to hear cases, and the hiring of special attorneys at the Department of Labor to handle cases, it can still take a year or more to reach a hearing on the merits.
It is unclear how much difference the new rules may make. Only the most "garden variety" cases will be eligible for simplified proceedings. While the proposed rules had stated that simplified proceedings would not be used if the aggregate amount of proposed penalties for the group of citations being challenged is greater than $15,000, or $50,000 for multiple groupings of citations consolidated into a single proceeding, the final rules state, more generally, that simplified proceedings will only be used if the case "involves a limited number of citations" and "a limited penalty amount.". Further, the rules specify that certain categories of citations will not be eligible for the new procedures. These categories include, among others, discrimination claims, citations or orders arising from a fatality, injury or illness, citations of particular factual or legal complexity, and citations alleging significant negligence ("unwarrantable failure" to comply with regulations). The Chief ALJ of the Commission, or the Chief's designee, will determine whether a case is designated for simplified proceedings.
Cases designated for simplified proceedings will be streamlined. Key differences include making it optional to file an answer to MSHA's proposed penalties; requiring early settlement discussions, and requiring early disclosure of information supporting a party's claims or defenses. Other than the information disclosures, discovery will not be permitted unless specifically ordered by the ALJ. Motions are not favored, and parties may not file post-hearing briefs without approval of the ALJ, but may present oral argument at the conclusion of the hearing. The ALJ may rule from the bench at the conclusion of the hearing but, regardless, must enter a written order disposing of the case within 60 calendar days after the hearing.
The Commission did not state, in its proposed rulemaking or its final rule commentary, how many of its pending cases might be eligible for the simplified proceedings designation. Thus, it is difficult to assess how the pilot program might impact the average time from filing to hearing for the remaining cases on the docket that are not designated for simplified proceedings.
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Rodney Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.
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©2011 Sherman & Howard L.L.C. January 20, 2011