Big Ridge, Inc. (Commission decision, February 27, 2012)

Plain-English summary

Big Ridge sought discretionary review after an ALJ denied reconsideration of an order upholding the validity of an MSHA control order issued under section 103(j) and modified under section 103(k). The Commission found that the ALJ had not explicitly decided whether the order was reasonable, had not dismissed the contest, and had required the parties to provide a status update. Those features showed that the ALJ still had jurisdiction and that his ruling was interlocutory rather than final. The Commission therefore denied Big Ridge's precautionary petition as an invalid request for review of a final decision.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(j), 813(k), and 823(d)
• Outcome: Big Ridge's precautionary petition for discretionary review was denied as premature.
• Key point: A ruling that leaves the contest pending before the ALJ is interlocutory and cannot be reviewed as a final decision.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 27, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

v.

BIG RIDGE, INC.

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Docket No. LAKE 2011-699-R

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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)(“Mine Act”). On February 21, 2012, Big Ridge, Inc. (“Big Ridge”) filed with the Commission a document entitled “Precautionary Petition for Discretionary Review.” Big Ridge seeks review of an order issued by Administrative Law Judge John Lewis on January 20, 2012, in which he denied reconsideration of his November 29, 2011 order denying Big Ridge’s motion to dismiss. In his January 20, 2012 order, he ruled that Order No. 8424291 issued to Big Ridge under section 103(j) of the Mine Act, 30 U.S.C. § 813(j) and subsequently modified to a section 103(k) order, 30 U.S.C. § 813(k), was valid.

We have determined that the judge’s January 20, 2012, decision is not a final decision ending his jurisdiction over this matter. In his order, the judge did not explicitly affirm Order No. 8424291 as reasonable, nor did he dismiss Big Ridge’s notice of contest. Dec. at 2. He also ordered the parties to provide a status update within two weeks of the date of his order, which further indicates that the judge did not intend the order to be final. Id. Consequently, his decision is interlocutory in nature. As a result, Big Ridge’s precautionary petition is not a valid petition for discretionary review of a final decision under section 113(d) of the Mine Act, 30 U.S.C. § 823(d).

For the foregoing reasons, the precautionary petition filed by Big Ridge is denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Suzanne F. Dunne, Esq.

Office of the Solicitor

U.S. Department of Labor

230 S. Dearborn St., 8th Floor

Chicago, IL 60604

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Arthur M. Wolfson, Esq.

Jackson Kelly PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue,

Pittsburgh, PA 15222

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

Administrative Law Judge John Lewis

Federal Mine Safety & Health Review Commission

875 Greentree Road, Suite 290

Pittsburgh, PA 15220