Office of the General Counsel and Elias Moses v. Whitley Development Corporation (Commission decision, March 23, 1983)

Plain-English summary

In a pending case involving Elias Moses and Whitley Development Corporation, the operator asked the Commission to remove the assigned judge and vacate his earlier orders. The Commission declined to act on that request because its procedural rule first required the judge to decide whether to withdraw. It returned the record to the judge for a ruling on the operator's motion. The order did not decide the underlying case or assess a penalty.

Decision snapshot

• Governing rule: 29 C.F.R. § 2700.81, requests for judge disqualification.
• Outcome: Immediate Commission action denied; record returned to the judge for further proceedings; no penalty assessed.
• Key point: The judge must address a disqualification request before the Commission considers it under the cited rule.

Full text (FMSHRC public release)

CCASE:
GENERAL COUNSEL V. WHITLEY DEVELOPMENT
DDATE:
19830323
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. March 23, 1983 OFFICE OF THE GENERAL COUNSEL ELIAS MOSES

v. Docket No. KENT 79-366-D

WHITLEY DEVELOPMENT
CORPORATION

ORDER
On March 7, 1983, the Commission received a motion filed by Whitley Development Corporation seeking the disqualification or removal of the administrative law judge assigned to this matter, and the vacation of all previous orders entered by him. This motion was simultaneously filed with the Commission and the judge. Upon the Commission's receipt of the motion, the record in this matter was forwarded by the judge to the Commission. Insofar as the operator seeks action by the full Commission on its motion at this time the request is denied. Commission Rule of Procedure 81 governs requests for disqualification and provides:

(b) Request to withdraw. Any party may request a a Commissioner, or the judge (at any time following his designation and before the filing of his decision), to withdraw on grounds of personal bias or disqualification, by filing promptly upon discovery of the alleged facts an affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. (c) Procedure if Judge does not withdraw. If the judge does not disqualify himself and withdraw from the proceeding, he shall so rule upon the record, stating the grounds for his ruling and shall proceed with the hearing, or, if the hearing has been completed, he shall proceed with the issuance of his decision, unless the Commission stays the hearing or further proceedings by granting a petition for interlocutory review. 29 C.F.R. $ 2700.81.
~298
In light of the foregoing, the judge is required to act on the motion and the record is returned to him for further proceedings on the operator's request consistent with the Commission's rules.
~299
Distribution
David Patrick, P.S.C.
P.0. Box 9
Harrodsburg, Kentucky 40330
William E. Hensley
P.0. Box 1263
Corbin, Kentucky 40701
Administrative Law Judge Richard Steffey Fed. Mine Safety & Health Rev. Commission 5203 Leesburg Pike, lOth Floor Falls Church, Virginia 22041