Wesley Mallery v. El Segundo Coal Company, LLC (Commission decision, July 12, 2024)

Plain-English summary

The Commission granted Wesley Mallery's request for review on whether the ALJ erred in finding no adverse action. A majority also directed review on whether the ALJ's show-cause orders and later dismissals were contrary to law because no dismissal or summary-decision motion had been filed. The Commission further agreed to decide whether documents Mallery filed on July 5 belonged in the appellate record. It set a briefing schedule and restricted later filings to those permitted by the procedural rules or the Commission.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2)(B)
• Outcome: Discretionary and sua sponte review were granted on specified procedural and merits issues.
• Key point: The Commission may review an ALJ's dismissal process on its own initiative when no party moved for dismissal.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

:

WESLEY MALLERY,
:

:

v. : Docket
No. CENT 2024-0106

:

EL SEGUNDO COAL CO.,
LLC :

:

DIRECTION FOR REVIEW

The petition for discretionary review
filed by the complainant, Wesley Mallery, on June 12, 2024, is granted with respect to the question of whether the Judge erred in finding no adverse action.

In addition, pursuant to Commission Procedural Rule 71, 29 C.F.R. § 2700.71, and section 113(d)(2)(B) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 823(d)(2)(B), we vote to grant sua sponte
review of the Administrative Law Judge’s Orders to Show Cause, issued on March 5, 2024 and March 14, 2024, and subsequent dismissals to determine whether they are contrary to law.[1] Specifically, we review whether the Judge erred in issuing her Orders to Show Cause in the absence of any motion to dismiss or motion for summary decision submitted to the Judge.

The Commission will also determine whether
the documents filed by Mr. Mallery on July 5, 2024 are part of the record on appeal.

The parties shall file their briefs
beginning 30 days from the date of this order in accordance with the briefing schedule requirements in 29 C.F.R. § 2700.75. Specifically, Mr. Mallery may file a single brief on or before August 12, 2024, to address the arguments in his petition for discretionary review, and the additional issue identified by the Commission in this direction for review. After the operator files its response brief, Mr. Mallery may file a reply brief within 20 days of service of the operator’s response brief.

Thereafter, Mr. Mallery may file documents
only in accordance with the Commission’s procedural rules and/or as permitted by the Commission. The Commission’s procedural rules may be accessed at https://www.fmshrc.gov.

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe
Z. Marvit, Commissioner

Distribution:

Wesley
Wayne Mallery

P.O.
Box 666

7120
Zuni Canyon Rd.

Grants,
NM 87020

[email protected]

Christopher G. Peterson, Esq.

Fisher
& Phillips, LLP

1125
17th Street Suite 2400

Denver,
CO 80202

[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 520 N

Washington, DC 20004-1710

[email protected]

Administrative Law Judge
Jacqueline Bulluck

Federal Mine Safety and
Health Review Commission

Office of the Chief
Administrative Law Judge

1331 Pennsylvania Avenue, NW,
Suite 520 N

Washington, DC 20004-1710

[email protected]

[1]
Commissioner Rajkovich would grant review of
only the issues raised in the PDR.