Phelps Dodge Chino Inc.

Plain-English summary

MSHA moved to vacate a citation issued to Phelps Dodge Chino Inc. after prehearing preparation and discovery, citing insufficient evidence. Phelps Dodge asked for dismissal with prejudice or, alternatively, declaratory relief concerning future enforcement. Judge Michael A. Lasher vacated the citation with prejudice and denied the request for declaratory relief. He directed that MSHA could not bring a future enforcement action against the respondent under the same regulation on identical facts, although a future action could rest on different facts.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.3360
• Outcome: Citation No. 3556068 was vacated with prejudice, and alternative declaratory relief was denied.
• Key point: Vacatur with prejudice barred a new action on the same regulation and identical facts, without preventing future enforcement based on different facts.

Full text (FMSHRC public release)

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                  1244 SPEER BOULEVARD #280
                    DENVER, CO 80204-3582
              (303) 844-5266/FAX (303) 844-5268

                         May 7, 1993

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-266-M
Petitioner : A.C. No. 29-00708-05546
:
v. :
: Chino Mine
PHELPS DODGE CHINO INC., :
Respondent :

                          DECISION

Before: Judge Lasher

 After prehearing preparation and discovery, on March 5,

1993, Petitioner moved to vacate the Citation in this matter, No.
3556068, on the basis of insufficient evidence. (Footnote 1)

 On April 2, 1993, Respondent filed its "Motion of Phelps

Dodge Chino Inc. To Dismiss With Prejudice Or In The Alternative
For Declaratory Relief."

   On April 14, 1993, Petitioner filed a letter stating:

        We have received Respondent's Motion ... to Dismiss
        With Prejudice, etc. We have no objection to your
        dismissing the citation with prejudice as you did in
        Homestake Mining Co., 13 FMSHRC 988. Such action
        would moot Respondent's request for any declaratory
        relief, which is requested "in the alternative" if
        you do not vacate the citation with prejudice.

   Respondent responded by letter, saying:

        We wish to note an important consideration in response
        to the government's current statement that it has no
        objection to dismissal with prejudice: such dismissal
        must be in accordance with Rule 41, Federal Rules of
        Civil Procedure. That is, dismissal will operate as

1 It is noted at the outset that at the time the motion to vacate was
filed, while Respondent had submitted a motion for summary judgment, such had
not been ruled on or determined, the factual prerequisites of this case had
not been established, no trial had been conducted and a record developed, nor
had findings of fact been scrutinized and determined.

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an adjudication on the merits. Such a result is
consistent with the ultimate resolution in Homestake
Mining Company v. Secretary of Labor, et al., United
States Court of Appeals for the District of Columbia
Circuit, Docket No. 91-1423. In Homestake, the case
was dismissed with prejudice and the Secretary was
"not to issue a new citation for violation of the same
regulation" under analogous facts.

 As counsel for Petitioner urges, in Homestake Mining Co., 13

FMSHRC 988 (June 21, 1991), I set forth my understanding what
dismissal with prejudice meant. In sum,

 1.   abandonment of the instant prosecution by the

Petitioner;

 2.   prohibition against seeking future action on the

citation being vacated.

 Dismissal with prejudice does not mean enjoining the en-

forcement agency, MSHA, from future use of the safety standard
involved, or applying the standard to "the same mine area de-
scribed in the subject Citation." As I noted therein, expanding
the concept of dismissal with prejudice to these latter concepts
would in effect be (a) granting the Contestant's declaratory re-
lief request without benefit of due process, hearing, and normal
adjudication processes.

 Respondent urges that the dismissal with prejudice of the

citation involved in this proceeding "operate as an adjudication
on the merits" and alleges that such is "consistent with the
ultimate resolution in Homestake Mining Company v. Secretary of
Labor, et al., U.S. Court of Appeals for the D.C. Circuit, Docket
No. 91-1423. If adjudication on the merits is intended to mean
that Respondent's view of the law, arguments, and positions as to
factual happenings, are adopted, such is rejected. The ultimate
resolution in the cited Homestake decision of the D.C. Circuit
grew out of this question: What should be the Secretary's abil-
ity to issue a new citation for violation of the same regulation
on the identical facts? When the Secretary indicated that she
would not issue a new citation for violation of the same regula-
tion on the identical facts on which she issued the citation
which she was vacating, the court held that such response ren-
dered the case "moot and not suitable for declaratory relief."
The court considered that "any future enforcement action must be
based on a different set of facts."

 I do not find the decision of the Court of Appeals inconsis-

tent with the holdings of my decision in Homestake, which was not
reviewed by the Commission. The Order set forth below is intend-
ed to effectuate the principles set forth herein.

                          ORDER

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1. Petitioner's action to vacate Citation No. 3556068 is
GRANTED.

   2.   Citation No. 3556068 is VACATED WITH PREJUDICE.

 3.   Respondent's Motion in the alternative for Declaratory

Relief is DENIED.

 4.   Petitioner shall not initiate any future enforcement

action under the same regulation against Respondent on the iden-
tical facts; any future enforcement action must be based on a
different set of facts.

                                      Michael A. Lasher, Jr.
                                      Administrative Law Judge

Distribution:

Daniel T. Curran, Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)

G. Lindsay Simmons, Esq., JACKSON & KELLY, 1701 Pennsylvania
Avenue, N.W., Suite 650, Washington, DC 20006 (Certified Mail)

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