Secretary of Labor on behalf of Reuben Shemwell v. Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc.

Plain-English summary

Armstrong asked Judge Jerold Feldman to certify immediate Commission review of his same-day refusal to stay a cease-and-desist order. Certification required a novel legal question and a showing that immediate review would materially advance the case. The judge found the stay standards were settled and that review would not advance the proceeding because the required dismissal of Armstrong's civil suit was not negotiable as part of settlement talks. He denied the emergency certification motion. Later Commission proceedings addressed the requested temporary stay.

Decision snapshot

• Governing rule: 29 C.F.R. § 2700.76(a)(1)(i)
• Outcome: Armstrong's emergency request for certification of interlocutory review was denied.
• Key point: Interlocutory certification requires both a novel controlling legal question and a concrete showing that immediate review will advance final disposition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue NW, Suite 520N

Washington, DC 20004

July 26, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of REUBEN SHEMWELL,

Complainant,

v.

ARMSTRONG COAL COMPANY, INC. &
ARMSTRONG FABRICATORS, INC.,

Respondent

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DISCRIMINATION PROCEEDING

Docket No. KENT 2013-362-D

MADI CD 2013-01

Parkway Mine Surface Facilities

Mine ID 15-19356

ORDER DENYING REQUEST FOR

CERTIFICATION FOR INTERLOCUTORY REVIEW

Before me is an emergency motion filed by Armstrong Coal Company, Inc. & Armstrong
Fabricators, Inc. (collectively referred to as “Armstrong”) on July 26, 2013, at 4:22 p.m.,
requesting certification for interlocutory review of an Order Denying Stay, issued on this date,
July 26, 2013. The order denied staying a Cease and Desist Order that requires Armstrong to file an appropriate motion to dismiss its civil suit, filed in the Commonwealth of Kentucky’s
Muhlenberg Circuit Court against Reuben Shemwell, within 40 days of the interim decision, or by Monday, July 29, 2013.

Certification of a request for interlocutory review requires a showing that the request for
interlocutory review involves a novel question of law, and that immediate review will materially
advance the final disposition of the proceeding. 29 C.F.R. § 2700.76 (a)(1)(i).

As noted in the Order Denying Stay sought to be reviewed, the case law concerning the criteria for granting a stay are well settled and do not present a novel question of law. Order Denying Stay, slip op. at 2. With respect to materially advancing this proceeding,
Armstrong argues that resolution of the question of whether interim remedial measures should be stayed upon notification that settlement has been reached will materially advance the proceeding. Armstr. Mot. Requesting Certif. at 2. However, as noted in the Order Denying
Stay, a Cease and Desist Order has been issued by the Judge. Consequently, the circumstances
and timetable for filing an appropriate motion to withdraw the civil suit are not matters for
negotiation between the parties, as the Cease and Desist Order goes beyond the scope of any
settlement terms. Order Denying Stay, slip op. at 4. Consequently, the interlocutory review
sought by Armstrong will not materially advance this proceeding.

Accordingly, IT IS ORDERED that the Emergency Motion Requesting Certification for Interlocutory Review IS DENIED.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution by electronic mail at 5:50 p.m.:

Mary Beth Zamer, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456

Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456

Adam K. Spease, Esq., Miller Wells, 710 W. Main Street, 4th Floor, Louisville, KY 40202

Mason L. Miller, Esq., 300 E. Main Street, Suite 360, Lexington, KY 40507

Daniel Z. Zaluski, Esq., 407 Brown Road, Madisonville, KY 42431

Tonny Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 41858

/tmw