France Stone Company

Plain-English summary

An ALJ approved a settlement under which France Stone would pay $12,000 for two citations. France Stone then moved to amend the settlement and dismiss the proceeding, stating that the Secretary agreed, but the motion was not signed by the opposing party. The Commission treated the motion as a timely petition for review, vacated the settlement decision, and remanded for the judge to determine the parties' actual settlement terms and conduct further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.65(c), 2700.70(a)
• Outcome: The decision approving settlement was vacated and the matter was remanded.
• Key point: A settlement dispute must be resolved on the parties' actual agreement before the Commission can approve the settlement.

Full text (FMSHRC public release)

CCASE:
MSHA V. FRANCE STONE
DDATE:
19900521
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             May 21, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

     v.              Docket No. LAKE 89-92-M

FRANCE STONE COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

          DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq (1982) ("Mine Act"). On
April 18, 1990, Commission Administrative Law Judge James Broderick
issued a decision approving a settlement agreement filed by the Secretary
of Labor. In the motion the Secretary stated that the terms of the
settlement had been agreed to by France Stone Company ("France Stone").
In accordance with this motion, the judge assessed civil penalties of
$12,000, the amount originally proposed by the Secretary for the two
citations involved in this proceeding. On April 20, 1990, however,
France Stone field with Judge Broderick a motin to amend the settlement,
to approve the amended settlement, and to dismiss the proceeding. This
motion asserted that the Secretary concurred in the motion. We deem
France Stone's motion to constitute a timely petition for discretionary
review, which we grant, and we remand this matter to the judge for
further proceedings.

The judge's jurisdiction in this proceeding terminated when his
decision approving settlement was issued. 29 C.F.R. 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's

Page 2

decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days of
the decision. 30 U.S.C. 823(d)(2); 29 C.F.R. 2700.70(a). Here, France
Stone's motion to Judge Broderick constitutes a request for relief from the
judge's decision, and constitutes a timely filed petition for discretionary
review. See, e.g., Kathleen I. Tarmann v. Int'l Salt Company, 12 FMSHRC 1,
2 (January 1990).

Page 3

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France Stone was not a signatory to the "settlement agreement that
it now disputes in part. France Stone's present motion suggests that
the original settlement submitted to the judge may not have reflected
the parties' agreement. Although France Stone's motion to amend the
settlement represents that the Secretary concurs in the motion, like
the first submissin it is not signed by the opposing party. In this
circumstance, further proceedings before the judge are necessary in
order to determine the terms of the parties' settlement. Peabody Coal
Co., 8 FMSHRC 1265, 1266 (September 1986).

Accordingly, the judge's Decision Approving Settlement is vacated
and the matter is remanded to the judge for further appropriate
proceedings.

Distribution

Henry Chajet, Esq.
Jackson and Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006

Rafael Alvarez, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn St., 8th Floor
Chicago, Illinois 60604

Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041