Ezel / Agency Decisions / LAKE 84-87-D

Jeffrey L. Fankhauser v. Gex Hardy, Inc. (ALJ decision, September 27, 1984)

Jeffrey L. Fankhauser v. Gex Hardy, Inc. (FMSHRC LAKE 84-87-D): Judge refers questions about unrepresented miners to the Commission

Decision type
ALJ decision
Docket
LAKE 84-87-D
Decided
September 27, 1984
Presiding judge
Joseph B. Kennedy
Outcome
Procedural
Precedential status
Interlocutory order, not final
Checked against source
2026-10-20
Official source
Read the official release (fmshrc.gov)
PDF
View Official PDF

Apply this to your situation

This order from 1984 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1984
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Interim ALJ order, not Commission precedent
This order referred procedural questions to the Commission while the discrimination case remained pending. It did not decide the complaint or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Transcribed from a scanned original: FMSHRC released this decision as an image-only file. The full text below is a machine transcription, proofread against the scan. Check the official release before quoting exact language.
Read the official release (fmshrc.gov)

Plain-English summary

Jeffrey L. Fankhauser brought a discrimination case against Gex Hardy without a lawyer. Judge Joseph B. Kennedy referred the case to the Commission for guidance on a trial judge's role when a miner represents himself. He asked whether a judge should require discovery, question witnesses, or seek counsel to file a brief for an unrepresented miner. The order did not decide Fankhauser's discrimination claim.

Decision snapshot

  • Governing provisions: None cited in this referral order.
  • Outcome: Case referred to the Commission for procedural guidance; discrimination claim left pending.
  • Key point: The judge sought direction on how to conduct a discrimination case involving an unrepresented miner.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
SEP 27 1984

JEFFREY L. FANKHAUSER, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. LAKE 84-87-D
GEX HARDY, INC., : MSHA Case No. VINC CD 84-06
Respondent :
: Holmes Strip Mine

ORDER OF REFERENCE

As the Commission is undoubtedly aware, a large percentage of the discrimination cases presently being filed are by miners acting pro se without legal representation of any kind.

Inasmuch as the Commission has never addressed the role of the trial judge in a discrimination proceeding where the miner is without legal representation, it is ORDERED that the captioned matter be, and hereby is, REFERRED to the Commission for its consideration and issuance of an order delienating the proper role of the trial judge in trying a pro se discrimination case. For example:

1. Is it the responsibility of the trial judge to require such discovery on behalf of the pro se miner as he deems necessary to a full and true disclosure of the facts?

2. Is it the responsibility of the trial judge to conduct the direct and cross-examination of witnesses where the miner is unable or incapable of doing so?

3. After trial, is it the responsibility of the trial judge to seek counsel to file a post hearing brief on behalf of a pro se miner?

Joseph B. Kennedy
Administrative Law Judge

Distribution:
Mr. Jeffrey L. Fankhauser, Box 23, Dundee, OH 44624 (Certified Mail) Wm. Michael Hanna, Esq., Squire, Sanders & Dampsey, Cousellors at Law, 1800 Huntington Building, Cleveland, OH 44145 (Certified Mail)

/ejp

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