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

Plain-English summary

Judge Jerold Feldman found that Armstrong's Kentucky civil lawsuit against miner Reuben Shemwell interfered with his Mine Act discrimination rights and ordered Armstrong to stop prosecuting it. The judge expressly labeled that ruling interim because civil penalties and additional relief remained unresolved. Armstrong petitioned for discretionary review and sought a stay, but it did not first use the Commission's interlocutory-review procedure. The Commission held that it could review only a final decision under the petition presented, so it denied review and lacked jurisdiction to grant a stay tied to that appeal. It noted that Armstrong could request a stay from the judge.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c) and 823(d); 29 C.F.R. § 2700.76(a)(1)
• Outcome: Armstrong's petition for discretionary review was denied, and the Commission did not consider the related stay application.
• Key point: An interim liability ruling is not reviewable as a final decision, and interlocutory review requires first seeking the judge's certification under Rule 76.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

July 26, 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 rises under the Federal Mine Safety and Health Act of 1977 (the Act” or
“Mine Act”), 30 U.S.C. § 801 et seq. (2006). On July 19, 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 Discretionary Review.” The Commission has
also received a document entitled “Respondents Armstrong Coal Co., Inc. &
Armstrong Fabricators, Inc.’s Joint Application for Stay Pending Appeal.

Both
of Armstrong’s pleadings seek relief from the “Decision on Liability and Cease
and Desist Order” issued by Administrative Law Judge (“ALJ”) Jerold Feldman on
June 19, 2013. In his Decision, Judge Feldman granted the discrimination
complaint filed by the Secretary of Labor (“the Secretary”) on January 8, 2013
on behalf of Reuben Shemwell (“Shemwell”) under section 105(c)(2) of the Act, 30
U.S.C. § 815(c)(2). The ALJ determined that a civil lawsuit which Armstrong had
filed against Shemwell in Kentucky, seeking compensatory and punitive damages,
violates section 105(c)(1) of the Mine Act because it interferes with Shemwell’s
right to file a discrimination complaint under the Act. Decision at 19.

In
the Cease and Desist Order, Judge Feldman ordered Armstrong to “cease and desist
from prosecuting its civil suit brought against Shemwell in the Commonwealth of
Kentucky’s Muhlenberg County Circuit Court by filing an appropriate motion to
dismiss.” Decision at 22. The ALJ then stated:

This Decision on Liability is an interim
decision. It does not become final until a Decision on Civil Penalty and
Supplemental Decision on Relief is issued. Accordingly, IT IS FURTHER ORDERED that the parties should
confer before July 30, 2013, in an
attempt to reach an agreement on the specific relief to be awarded. . . . If the
parties cannot agree on the relief to be awarded, the parties ARE FURTHER ORDERED to file, on or before August 23, 2013, Proposals for
Relief specifying the appropriate relief to be awarded.

Decision at 23 (emphasis in original).

With
regard to Armstrong’s Petition for Discretionary Review, filed “pursuant to
Commission Procedural Rule 70,”

Armstrong PDR at 1, we have determined that the ALJ’s Decision and Cease and
Desist Order is not a final decision ending the judge’s jurisdiction over this
matter. Section 113(d) of the Mine Act, 30 U.S.C. § 823(d), only allows for
review of final decisions. Ordinarily, a judge’s decision finding a violation
under the Mine Act is not final until the judge issues a penalty against the
operator under section 105(d) of the Mine Act, 30 U.S.C. § 815(d). In his
Decision in this case, quoted above, Judge Feldman explicitly stated that the
decision does not become final until the judge issues a Decision on Civil
Penalty and Supplemental Decision on Relief. Thus, the Commission lacks
jurisdiction to entertain Armstrong’s Petition for Discretionary Review and must
reject it.

We
recognize that under Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the
Commission may review a judge’s ruling prior to the judge’s final decision in
the case. However, the procedure for interlocutory review under Rule 76(a)(1)
includes certain mandatory provisions including the requirement that the party
seeking interlocutory review first present the request to the judge and request
his certification that the “interlocutory ruling involves a controlling issue of
law” and that “immediate review will materially advance the final disposition.”
29 C.F.R. § 2700.76(a)(1).

In
this case, Armstrong could have sought interlocutory review under Rule 76, but
did not do so. Armstrong’s Petition for Discretionary Review was filed
exclusively pursuant to Commission Rule 70, and did not mention the particular
requirements applicable to interlocutory review under Rule 76. Indeed, nowhere
in its 23-page petition did Armstrong recognize that Judge Feldman’s Decision
was not final, or even that the judge had very specifically emphasized that his
Decision was not final. In the absence of any request for interlocutory relief
by Armstrong, we need not address whether such relief would be appropriate.

Armstrong’s
Application for Stay Pending Appeal seeks “a stay of the Cease and Desist Order
entered in this matter on June 19, 2013 in its entirety pending a ruling upon
Respondents’ Petition for Discretionary Review and any subsequent appellate
proceedings.” Application at 1, 9. The Commission has determined that it does
not have jurisdiction to consider Armstrong’s Petition for Discretionary Review.
Thus, it also lacks jurisdiction to consider granting a stay in connection with
a non-existent appeal.

Armstrong may seek a stay of the judge’s Cease and Desist Order by motion
addressed to the judge.

For
the reasons set forth above, Armstrong’s Petition for Discretionary Review is
denied.

/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.

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.

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