Shamokin Filler Company, Inc. (Commission decision, June 2, 2011)

Plain-English summary

Shamokin Filler Company sought immediate Commission review of an administrative law judge's ruling that its carbon plant was subject to MSHA jurisdiction. The Commission had previously rejected a petition for discretionary review because the judge had not yet decided the alleged violations and penalties, so his jurisdictional ruling was not a final decision. The judge later denied Shamokin's request to certify the ruling for interlocutory review. The Commission found that Shamokin had not shown that the ruling involved a controlling legal question whose immediate review could materially advance the case. It denied the petition for interlocutory review.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.76(a)(2); 30 U.S.C. §§ 801 and 823(d)
• Outcome: The petition for interlocutory review was denied.
• Key point: An operator seeking interlocutory review must show both a controlling legal question and that immediate review may materially advance the proceeding.

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

June 2, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

SHAMOKIN FILLER COMPANY, INC.

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Docket Nos. PENN 2009-775

PENN 2009-825

PENN 2010-63

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. On April 25, 2011, Shamokin Filler Company, Inc. (“Shamokin”) filed a document entitled “Petition for Interlocutory Review” with the Commission pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, that is at issue in this Order. Shamokin seeks review of an order issued by Administrative Law Judge John Lewis on March 11, 2011, in which he ruled that Shamokin’s carbon plant is under the regulatory jurisdiction of the Mine Safety and Health Administration

Previously, on April 6, 2011, Shamokin had filed with the Commission a document entitled “Petition for Discretionary Review,” seeking review of the judge’s order. The Commission determined that this order was not a final decision that ended his jurisdiction over this matter. In his decision, the judge resolved the jurisdictional issue, but made no findings regarding the violations and penalties at issue. As a result, the Commission determined that Shamokin’s petition was 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). On April 8, 2011, the Commission issued an order denying the petition on that basis.

On April 8, 2011, Shamokin filed a Motion for Certification of Interlocutory Review with Judge Lewis. On April 12, 2011, Judge Lewis issued an Order Denying Certification for Interlocutory Review.

Upon consideration of Shamokin’s petition, we have determined that it has failed to establish that the March 11, 2011, order issued by Judge Lewis involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(2). We therefore deny the petition.

Mary Lu Jordan, Chairman                             

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq..

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Jessica R. Brown, Esq.

Office of the Solicitor

U.S. Department of Labor

The Curtis Center, Suite 630E

170 S. Independence Mall West

Philadelphia, PA 19106-3306

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge John K. Lewis

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

7 Parkway Center

875 Green Tree Road, Suite 290

Pittsburgh, PA 15220