Ezel / Agency Decisions / cent-2002-80-m-alj
FMSHRC ALJ decision Docket CENT 2002-80-M, CENT 2002-124-M, CENT 2001-285-M, CENT 2001-286-M, CENT 2001-363-M, CENT 2001-364-M, CENT 2001-379-M Decided April 1, 2003 Procedural Judge Irwin Schroeder

Cactus Canyon Quarries of Texas, Incorporated

Cactus Canyon Quarries of Texas, Incorporated (FMSHRC CENT 2002-80-M, et al.): Interlocutory appeal certification denied

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This order from 2003 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 2003
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Interlocutory ALJ order, not Commission precedent
This order denied certification of an interlocutory appeal from an earlier order denying motions to dismiss. It did not dispose of the civil penalty proceedings or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). It is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Cactus Canyon Quarries asked the ALJ to certify procedural and discovery issues for immediate Commission review before a hearing on the alleged safety violations. Judge Irwin Schroeder declined because the requested appeal would not materially advance final disposition and the issues included factual questions that would benefit from a fuller record. He also found that the controlling questions were mixed questions of law and fact and that interlocutory review would not appropriately resolve the substantial-evidence issues. The motion for certification was denied, while the underlying civil penalty proceedings continued.

Decision snapshot

  • Governing rule: 29 C.F.R. § 2700.76
  • Outcome: Certification of the interlocutory appeal was denied.
  • Key point: Immediate review was not warranted when the disputed issues were intertwined with facts that had not yet been developed at a merits hearing.

Full text (FMSHRC public release)

CACTUS CANYON QUARRIES OF TEXAS, INCORPORATED -- April 1, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001

April 1, 2003

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2002-80-M
Petitioner : A.C. No. 41-00009-05555
:
: Docket No. CENT 2002-124-M
: A.C. No. 41-00009-05556
:
: Docket No. CENT 2001-285-M
: A.C. No. 41-00009-05550
:
v. : Docket No. CENT 2001-286-M
: A.C. No. 41-00009-05551
:
: Docket No. CENT 2001-363-M
: A.C. No. 00009-05552
:
: Docket No. CENT 2001-364-M
CACTUS CANYON QUARRIES OF : A.C. No. 41-00009-05553
TEXAS, INCORPORATED, :
Respondent : Docket No. CENT 2001-379-M
: A.C. No. 41-00009-05554
:
: Mine: Fairland Plant and Quarries

ORDER DENYING CERTIFICATION FOR INTERLOCUTORY APPEAL

By a Motion received on March 17, 2003, Respondent seeks to raise procedural and
discovery issues before the Commission prior to a hearing on the merits of the allegations of
safety violations. Under Commission Rule 2900.76, Respondent seeks immediate review by the
Commission of my March 3, 2003 Order denying the Respondent's several motions to dismiss
the Petitions for reasons generally related to delays in the initiation of these proceedings. On
March 27, 2003, the Secretary filed a detailed Opposition to the Respondent's request. For the
reasons briefly discussed below, I decline to certify my Order for interlocutory appeal.

Materially Advance Final Disposition

A Motion to Dismiss, by its very nature, is an attempt to bring a claim to an early
disposition. It is an attempt to reach a final disposition without the need for examination of the
merits of the asserted claim. Denial of a Motion to Dismiss is not normally appealable separate
and apart from an appeal on a decision on the merits.

I am not persuaded the Respondent has made a compelling case that the issues raised in
its request for interlocutory appeal certification are so decisive as to materially advance the final
disposition. It makes no real attempt to assert prejudice from being required to complete a
presentation on the merits prior to having an opportunity to present these issues to the
Commissioners. Many of the assertions by the Respondent concern factual rather than legal
matters and a more complete factual record would undoubtedly be helpful in any eventual
appellate review.

Controlling Questions of Law

My order denying the Respondent's Motions to Dismiss states the controlling issues are
mixed questions of law and fact. As the Secretary argues at some length, there are a great
number of cases illustrating the sensitive balancing process involved in evaluating the argument
that delay in pursuing a claim means the claim is lost. The appropriate standard of review on
appeal would be a "substantial evidence" test for the factual questions and "clear error" on the
legal questions. It is difficult to imagine an interlocutory appeal appropriately addressing the
"substantial evidence" issue.

ORDER

For the foregoing reasons, the Motion for Certification of Interlocutory Appeal is denied.

Irwin Schroeder

Administrative Law Judge

Distribution: (Certified Mail)

Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 525 S. Griffin Street,
Suite 501, Dallas, TX 75202

Andy Carson, Esq., 7232 County Road 120, Marble Falls, TX 78654

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