Fred Estrada v. Runyan Construction, Inc. (Commission decision, April 29, 2014)

Plain-English summary

An ALJ found that Runyan Construction discriminated against Fred Estrada but retained jurisdiction to determine specific remedies and monetary damages. Runyan filed a petition for discretionary review before that relief was resolved. The Commission denied the petition because section 113(d) permits discretionary review only of final decisions and the liability ruling was interlocutory. Runyan also had not asked the judge to certify the ruling under Rule 76, and the Commission stated that the controlling-question requirements would not have been met even if it had followed that procedure.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d); 29 C.F.R. § 2700.76
• Outcome: Runyan's petition for discretionary review was denied.
• Key point: A discrimination liability ruling is not reviewable before remedies are finalized unless the party satisfies the separate interlocutory-review process.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

April
29, 2014

FRED ESTRADA

v.

RUNYAN CONSTRUCTION, INC.

Docket No. CENT 2013-311-DM

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and
Althen, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012). On April 18, 2014, Runyan Construction, Inc. (“Runyan”) filed with the Commission a document entitled “Petition for Discretionary Review.” Runyan seeks review of a Decision on Liability issued by an Administrative Law Judge on March 31, 2014, in which he ruled that Runyan had discriminated against Fred Estrada in violation of section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 36 FMSHRC __, Docket No. 2013-311-DM, slip op. at 25-26 (Mar. 31, 2014) (ALJ).

In his decision, the Judge stated that he
“retains jurisdiction in this matter until the specific remedies to which Mr. Estrada is entitled are resolved and finalized. . . . Accordingly, this decision will not become final, and therefore not appealable, until an order granting specific relief and awarding monetary damages has been entered.” Id. at 26. Consequently, his decision is interlocutory in nature. Section 113(d) of the Mine Act, 30 U.S.C. § 823(d), which governs the filing of petitions for discretionary review, only allows for review of final decisions.

Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may review a Judge’s ruling, prior to the Judge’s final decision in the case, only if certain conditions are met. First, pursuant to Rule 76(a)(1), either the Judge must certify that his or her interlocutory ruling involves a controlling question of law and that immediate review will materially advance the final disposition of the proceeding or the Judge must deny a party’s motion for certification of the interlocutory ruling to the Commission and the party must file with the Commission a petition for interlocutory review within 30 days of the Judge’s denial of such motion for certification. Second, under Rule 76(a)(2), a majority of the Commission members must conclude that the Judge’s interlocutory ruling involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding.

In this case Runyan failed to ask the Judge to certify his ruling for interlocutory review and of course, the Judge has not denied any such request. Thus, Runyan has not followed the necessary procedures to seek interlocutory review.[1]

For the reasons set forth above, the petition filed by Runyan is denied.

/s/ Mary Lu Jordan       

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution

Jason M. Nutzman, Esq.

Dinsmore & Shohl, LLP

900 Lee Street, Suite 600

Charleston, WV 25301

Nathan Gonzales, Esq.

Gonzales Law

925 N. Hudson

Silver City, NM 88061

Ben Furth, Esq.

The Furth Law Firm, P.A.

The Furth Building

780 South Walnut, Suite 5

Las Cruces, NM 88001

Administrative Law Judge William B. Moran

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004

[1]
Even if Runyan had sought interlocutory review from the Judge and been denied, we would conclude that the conditions set forth in Rule 76(a)(2) would not be met. Therefore, it appears at this point that no purpose would be served by Runyan filing a motion for interlocutory review with the Judge.