Mountain Top Trucking Company, Mayes Trucking Company, Inc., Elmo Mayes, William David Riley, and Anthony Curtis Mayes (Commission decision, April 17, 1996)

Plain-English summary

The Secretary brought a discrimination proceeding on behalf of four miners. The presiding judge denied the appearance of private counsel for the individual miner complainants and certified that ruling for interlocutory review. The Commission accepted review, held that the miners had an unequivocal right to participate and present evidence, and held that Commission rules permit their representative to enter an appearance. It reversed the judge's ruling and directed him to accept the attorney's appearance.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c)(2); 29 C.F.R. §§ 2700.3(c), 2700.4(a), and 2700.76
• Outcome: The Commission reversed the denial of appearance and directed the judge to accept private counsel for the individual miner complainants.
• Key point: Miners represented in a Secretary-initiated discrimination proceeding may participate, present evidence, and appear through private counsel.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 17, 1996

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA)
:
On behalf of LONNIE BOWLING, :
EVERETT DARRELL BALL, : Docket Nos. KENT 95-604-D WALTER JACKSON, AND : KENT 95-605-D DAVID FAGAN : KENT 95-613-D
: KENT 95-615-D
v. :
:
MOUNTAIN TOP TRUCKING COMPANY, :
MAYES TRUCKING COMPANY, INC., :
ELMO MAYES, WILLIAM DAVID RILEY, :
AND ANTHONY CURTIS MAYES :

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

ORDER

BY THE COMMISSION:

By order dated April 8, 1996, Administrative Law Judge Jerold Feldman certified for interlocutory review by the Commission, under Commission Rule 76(a)(1)(i), 29 C.F.R.
§ 2700.76(a)(1)(i) (1995), his denial of the entry of appearance by private counsel for the individual complainants in the instant proceeding. We conclude that the judge’s ruling involves a controlling issue of law and that immediate review may materially advance the final disposition of the proceeding. Thus, we hereby grant review, pursuant to Commission Rule 76(a)(2), 29 C.F.R.
§ 2700.76(a)(2). We waive the filing of briefs from the parties otherwise required by the Commission’s rules in interlocutory review proceedings. See Commission Rule 76(e), 29 C.F.R.
§ 2700.76(c).

Page 2

The judge’s Order Denying Notice of Appearance, also dated April 8, 1996, denied the entry of appearance by private counsel representing individual miner complainants in a discrimination proceeding brought by the Secretary of Labor, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (1994). Upon consideration of the judge’s order, we reverse. The right of a miner complainant to participate in a discrimination proceeding brought by the Secretary is unequivocal. Section 105(c)(2) provides that a complaining miner may present evidence. Commission Rule 4(a) reiterates that statutory right and accords the complaining miner party status in a section 105(c)(2) proceeding. 29 C.F.R.
§ 2700.4(a). Commission Rule 3(c) further provides for entry of appearance by the representative of a party. 29 C.F.R. § 2700.3(c).

Moreover, the Commission and a United States court of appeals have approved the use of private attorneys in section 105(c)(2) actions. Eastern Assoc. Coal v. FMSHRC, 813 F.2d 639, 643 (4th Cir. 1987) (“The complainant has . . . chosen to retain private counsel.”), aff’g Secretary on behalf of Ribel v. Eastern Assoc. Coal Corp., 7 FMSHRC 2015, 2021 (December 1985) (miner retained private counsel); Secretary on behalf of Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 1327, 1339 n.6 (August 1987) (“Individual complainants remain free to retain private counsel at any time.”).

Page 3

Accordingly, the judge’s denial of the entry of appearance by the attorney representing the individual miners is reversed and the judge shall accept his entry of appearance.

__________
Mary Lu Jordan, Chairman

__________
Joyce A. Doyle, Commissioner

__________
Arlene Holen, Commissioner

_____
Marc Lincoln Marks, Commissioner

_____
James C. Riley, Commissioner