Secretary of Labor v. Morton Salt, Inc. (Commission decision, December 29, 2023)

Plain-English summary

An ALJ certified an interlocutory question arising from Morton Salt's challenge to a pattern-of-violations notice. The Commission accepted review to decide whether it had authority to examine the Secretary's decision to issue that notice. It suspended the scheduled January hearing while the jurisdictional question was pending. The order required both parties to file opening and response briefs on an expedited schedule.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.76(a)
• Outcome: Interlocutory review was granted and the merits hearing was suspended.
• Key point: The Commission agreed to decide its own authority to review MSHA's issuance of a pattern-of-violations notice before the case proceeded.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR
:

MINE SAFETY AND
HEALTH :

ADMINISTRATION
(MSHA) :

:

                    v.
                                           :        Docket No. CENT

2023-0120

:

MORTON
SALT ,
INC. :

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) . On December 18, 2023, a Commission Administrative Law Judge issued an order granting the Secretary’s motion for certification for interlocutory review and denying her motion to cancel the hearing scheduled for January 9-11, 2024.

Commission Procedural Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a).

Upon
consideration by the Commission, the Judge’s December 18, 2023, certification for interlocutory review is accepted. The Commission hereby grants interlocutory review of the following issue: whether the Commission has authority to review the Secretary’s decision to issue a notice of pattern of violations. The hearing scheduled for January 9-11, 2024, is hereby suspended pending further order by the Commission. Both parties shall file opening briefs with the Commission within 20 days of the date of this order, and response briefs shall be filed within 10 days after service of the opening briefs.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

                                                                                            /s/

William I. Althen

                                                                                William

I. Althen, Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J.
Baker

Timothy J. Baker, Commissioner

Distribution:

Lacee
Caitlyn Eakins, Esq.

U.S.
Department of Labor

Office
of the Solicitor

525 S.
Griffin Street, Suite 501

Dallas,
TX 75202

[email protected]

W.
Tyler Nash, Esq.

U.S.
Department of Labor

Office
of the Solicitor

525 S.
Griffin Street, Suite 501

Dallas,
TX 75202

[email protected]

Donna
Vetrano Pryor, Esq.

Husch
Blackwell LLP

1801
Wewatta Street, Suite 1000

Denver,
CO 80202

[email protected]

R.
Brian Hendrix, Esq.

Husch
Blackwell LLP

1801
Pennsylvania Avenue, N.W.

Suite
1000, Washington, DC 20006

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Administrative Law
Judge David P. Simonton

Federal Mine Safety Health Review Commission

721 19th Street, Suite 443

Denver, CO 80202-2500

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]