Secretary of Labor v. Jones Brothers, Inc. (Commission decision, April 24, 2019)

Plain-English summary

A Commission judge had ruled that Jones Brothers' operations were subject to the Mine Act, then entered a final order affirming nine citations and orders so the company could appeal the jurisdiction issue. The Sixth Circuit vacated those decisions because the judge had not been constitutionally appointed when she issued them. Although the Commission later cured the appointment defect, the court held that a new hearing had to be conducted by a different judge under Lucia v. SEC. The Commission therefore remanded the consolidated proceedings to the Acting Chief Administrative Law Judge for reassignment and further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 801 et seq.; U.S. Const. art. II, § 2, cl. 2
• Outcome: The three consolidated proceedings were remanded for assignment to a different judge and a new hearing.
• Key point: A later correction to an administrative law judge's appointment did not cure decisions issued before the judge was constitutionally appointed.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF
LABOR,                             :

MINE SAFETY AND
HEALTH                    :

ADMINISTRATION
(MSHA)                       :        Docket Nos.    SE 2016-218

:                                SE 2016-219

v.                                              
 :                                SE 2016-246

:

JONES BROTHERS,
INC.                             :

BEFORE: Jordan, Young,
Althen, and Traynor, Commissioners [1]

ORDER

BY
THE COMMISSION:

These
consolidated contest and civil penalty proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). After nine citations and orders were issued to Jones Brothers, Inc. by the Department of Labor’s Mine Safety and Health Administration, a Judge found that the operations of the company were subject to the Mine Act. 39 FMSHRC 399 (Feb. 2017) (ALJ). The parties then moved for a final order so that an appeal on the jurisdiction issue could be pursued, whereupon the Judge granted the motion, affirmed the citations and orders, and assessed penalties. 39 FMSHRC 570 (Mar. 2017) (ALJ).

The
Commission did not grant Jones Brothers’ petition for discretionary review, but subsequently the company successfully appealed to the United States Court of Appeals for the Sixth Circuit. That court vacated the decisions below, ruling that at the time of the Judge’s decisions, she was an inferior officer of the United States who had not been appointed in

accordance
with Article II, Section 2, Clause 2 of the Constitution. [2] Jones Bros., Inc. v. Sec’y of Labor , 898 F.3d 669, 679 (6th Cir. 2018) (following Lucia v. SEC , ___ U.S. ____, 138 S. Ct. 2044, 2050 (2018). While recognizing that subsequent to her decisions the Commission had cured the defect in the Judge’s appointment, the court nonetheless held:

Jones Brothers is entitled
to a new hearing before a constitutionally appointed administrative law judge. And even if [the] Judge [here] has since received a constitutional appointment, that hearing must be before a new official. [The] Judge [here] “issued an initial decision on the merits [and] cannot be expected to consider the matter as though [she] had not adjudicated it before.”

Id . (quoting Lucia , 138 S. Ct. at 2055). Accordingly we remand this matter to the Acting Chief Administrative Law Judge for assignment to a different Judge to conduct further proceedings consistent with the court’s instructions.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G.
Young

Michael G. Young, Commissioner

/s/ William I.
Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

[1] Chairman Marco
M. Rajkovich, Jr. is recused in this matter.

[2] Known as “the
Appointments Clause,” it reads:

[the President] shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior

Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of Departments.