Secretary of Labor on behalf of Reuben Shemwell v. Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc. (Commission decision, July 29, 2013)

Plain-English summary

An administrative law judge had issued a cease-and-desist order and later denied Armstrong's request to stay it and certify an interlocutory appeal. Armstrong told the Commission that the parties had verbally agreed on settlement terms and needed time to finalize a written motion. The Secretary did not oppose a temporary stay through August 15, 2013. The Commission stayed the cease-and-desist order until it ruled on the interlocutory petition, but no later than that date. Armstrong was barred from advancing its Kentucky civil tort action against Reuben Shemwell during the stay.

Decision snapshot

• Governing rule: 29 C.F.R. § 2700.76(a)(1)(i)
• Outcome: A temporary stay was granted through the Commission's interlocutory ruling or August 15, 2013, whichever came first.
• Key point: The Commission may preserve the status quo briefly while parties finalize a settlement and an interlocutory petition remains pending.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 29, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

on behalf of REUBEN SHEMWELL

v.

ARMSTRONG COAL COMPANY, INC. &

ARMSTRONG FABRICATORS, INC.

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Docket No.KENT 2013-362-D

BEFORE: Jordan, Chairman; Young and Nakamura, 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. (2006). On July 29, 2013, Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc. (“Armstrong”) filed with the Commission a document entitled “Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc.’s Joint Petition for Interlocutory Review.” On the same day, Armstrong also filed a document entitled “Respondents Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc.’s Joint Emergency Application for Temporary Stay Pending Review.”

Both of Armstrong’s pleadings seek relief from the “Order Denying Stay” issued by Administrative Law Judge (“ALJ”) Jerold Feldman on July 26, 2013. In his Order, Judge Feldman denied a stay of the Cease and Desist Order he had previously issued on June 19, 2013.

Following issuance of the Order Denying Stay, Armstrong had filed with the ALJ an “Emergency Motion to Certify for Interlocutory Review” pursuant to Commission Procedural Rule 76(a)(1)(i), 29 C.F.R. § 2700.76(a)(1)(i). Judge Feldman issued an “Order Denying Request for Certification for Interlocutory Review” on July 26, 2013.

Armstrong represents that the parties have verbally agreed upon terms of a settlement of this case, and seeks “a temporary stay of the Cease and Desist Order until August 15, 2013, during which time the Parties could finalize and submit a written Joint Settlement Motion for consideration.” Joint Petition For Interlocutory Review at 2. Armstrong further represents that during the period of stay, it will take no action to further its Kentucky civil tort action against Shemwell. Id. The Secretary has notified the Commission that he does not oppose Armstrong’s Joint Petition for Interlocutory Review, and does not oppose Armstrong’s Application for Stay Pending Review as long as the stay extends only until August 15, 2013.

Upon consideration of the foregoing, the Commission hereby orders that the ALJ’s Cease and Desist Order be stayed until the Commission rules upon the Joint Petition for Interlocutory Review, but not beyond August 15, 2013. During the period of stay, Armstrong shall take no action to further its Kentucky civil tort action against Shemwell.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Mary Beth Zamer, Esq.

Matt S. Shepherd, Esq.

Office of the Solicitor

U.S. Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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.

Armstrong Coal Company

407 Brown Road

Madisonville, KY 42431

Tony Oppegard, Esq.

P.O. Box 22446

Lexington, KY 40522

Wes Addington, Esq.

Appalachian Citizens Law Center

317 Main Street

Whitesburg, KY 41858

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004