CAM Mining, LLC

Plain-English summary

An ALJ dismissed the Secretary's penalty petitions after finding no factually supported reason for their late filing. The Commission noted that a chief judge had already granted leave to file the petitions out of time, but the later dismissal did not acknowledge that ruling or explain why it should not be followed. Without that explanation, the Commission could not determine whether sufficient grounds supported the dismissal. It vacated the summary decision and remanded the three cases for further proceedings.

Decision snapshot

• Issue: Whether the ALJ adequately explained the decision to disregard an earlier order allowing late-filed penalty petitions
• Outcome: The summary decision dismissing the petitions was vacated and the cases were remanded.
• Key point: A judge who departs from an earlier ruling in the same case must address that ruling and provide enough reasoning for appellate review.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 28, 2011

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

CAM MINING, LLC 

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Docket Nos.

KENT 2009-444

KENT 2009-445

KENT 2009-446

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

DIRECTION FOR REVIEW AND DECISION

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On September 21, 2011, Administrative Law Judge Gary
Melick issued a summary decision finding that the Secretary of Labor (“Secretary”) had shown
no factually supported reason for why her petitions for assessment of civil penalty were not
timely filed and dismissed the petitions. Unpublished Order at 2 (September 21, 2011). On
October 21, 2011, the Secretary filed a Petition for Discretionary Review. For the following
reasons, we grant the Secretary’s petition, vacate the judge’s order, and remand for further
proceedings.

In her petition, the Secretary notes that on April 2, 2010, Chief Administrative Law Judge
Robert Lesnick granted the Secretary’s motions for leave to file penalty petitions out of time.
She asserts that Judge Melick erred in failing to take into account that another judge in the same
case had previously ruled that adequate cause for the delayed filing of the Secretary’s penalty
petitions had been established. She argues that he abused his discretion in setting aside Judge Lesnick’s ruling without discussing the effect of that ruling and without determining if
compelling circumstances necessitated that this ruling be set aside.

On October 26, 2011, the Commission received CAM Mining LLC’s (“CAM”) Brief in
Opposition to Commission Review. CAM contends that the Commission should deny the
Secretary’s Petition for Discretionary Review on the grounds that the summary decision of Judge
Melick was correctly decided and that many of the citations at issue are moot because the
Secretary has already vacated them. In addition, CAM asserts that there is no authority for the
Secretary’s contention that a judge should apply appellate standards on motions for
reconsideration before a case is final.

Judge Melick’s summary decision did not acknowledge Chief Judge Lesnick’s earlier
order nor did he outline his reasons for declining to follow it. Without this essential information,
the Commission cannot determine whether there were sufficient grounds for Judge Melick’s
decision.

For the foregoing reasons, we grant the Secretary’s Petition for Discretionary Review,
vacate the judge’s summary decision, and remand these matters to Judge Melick for further
proceedings.

/s/ Mary Lu Jordan.

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Mark E. Heath, Esq.

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East

P.O. Box 273

Charleston, WV 25321

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Gary Melick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021