Secretary of Labor o/b/o Smith v. The Helen Mining Company

Plain-English summary

Helen Mining Company asked the Commission to stay an Administrative Law Judge's assessment of a $10,000 civil penalty and a $45,450.37 back-pay award while the company appealed. The Secretary did not oppose relief if Helen deposited the awards, plus any required interest, into bona fide interest-bearing escrow accounts. The Commission held that it had jurisdiction before the record was filed in the court of appeals. It granted the application to the extent that the escrow accounts were established under the conditions in the Secretary's response.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(1); 30 U.S.C. § 816(a)(1)
• Outcome: The stay application was granted to the extent that Helen established interest-bearing escrow accounts for the civil penalty and back-pay award, plus required interest.
• Key point: An escrow arrangement could preserve the status quo while the final Commission decision was under appellate review.

Full text (FMSHRC public release)

~1993

                             December 17, 1992

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of JOSEPH A. SMITH :
:
v. : Docket Nos. PENN 92-57-D
: PENN 92-58-D
THE HELEN MINING COMPANY :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                  ORDER

BY THE COMMISSION:

  On November 18, 1992, Helen Mining Company ("Helen") filed an

Application for Stay ("Application") of Administrative Law Judge Roy J.
Maurer's September 17, 1992, assessment of a civil penalty and award of back
pay in this matter. 14 FMSHRC 1626, 1645 (September 1992)(ALJ).(Footnote 1)
In the alternative, Helen requests that the Commission permit it to deposit
the civil penalty and back pay award into an interest-bearing escrow account.
Helen stated in its Application that it intended to appeal the judge's
decision to the United States Court of Appeals for the District of Columbia
Circuit(Footnote 2). It requests that the stay or escrow arrangement remain
in effect until such time as a final appellate determination in these
proceedings has been reached.

  The Secretary responded to the Application on November 23, 1992. She

states that she does not oppose the escrow relief requested by Helen so long
as Helen deposits the back pay award in the amount of $45,450.37, plus
interest due on that amount under the terms of the judge's order, and the
civil penalty in the amount of $10,000 in bona fide interest-bearing escrow
accounts. The Secretary further requests that, in the event the judge's order
is upheld on appeal, any applicable pre- and/or post-judgment interest be
included in the awards to Complainant Joseph A. Smith and the Secretary,

1 Helen filed a Petition for Discretionary Review of the judge's decision
with the Commission, but no two Commissioners voted to grant the petition. As
a consequence, the judge's decision became the final decision of the
Commission 40 days after it was issued. 30 U.S.C. § 823(d)(1).

2 Helen filed its petition for review in the D.C. Circuit on November 18,
1992.

~1994

respectively. Counsel for the Secretary has advised the Commission, by
telephone, that Complainant Joseph A. Smith agrees with the Secretary's
position.

  Helen filed its Application pursuant to Rule 18 of the Federal Rules of

Appellate Procedure, which provides that an "[a]pplication for a stay of a
decision or order of an agency proceeding pending direct review in a court of
appeals shall ordinarily be made in the first instance to the agency." An
escrow arrangement has the effect of maintaining the status quo in this
litigation during appeal. Section 106(a)(1) of the Mine Act, 30 U.S.C.
§ 816(a)(1), provides that if a final decision of the Commission is appealed
to a court of appeals, the court shall have exclusive jurisdiction of the
proceeding once the record of the proceeding before the Commission is filed
with the court. The record in the present proceeding is due to be filed with
the D.C. Circuit on January 7, 1993. The Commission, therefore, has
jurisdiction to consider Helen's Application at this time.

  Under the facts presented and given the Secretary's and the

complainant's lack of opposition to Helen's Application to place the civil
penalty and back pay award, plus interest, into escrow accounts, Helen's
Application is granted to the extent that the escrow accounts shall be
established subject to the conditions set forth in the Secretary's response to
the Application.
Arlene Holen, Chairman

                                Richard V. Backley, Commissioner

                                Joyce A. Doyle, Commissioner

                                L. Clair Nelson, Commissioner