Secretary of Labor v. Mark Augustine, employed by Metzger Removal, Inc. (Commission decision, July 16, 2018)

Plain-English summary

Mark Augustine sought to reopen a final individual penalty assessment issued under section 110(c) for his conduct as an employee of Metzger Removal. The Secretary supported reopening so the assessment could be included in a global settlement of the outstanding matters involving Augustine and the operator. The Commission reopened the case, remanded it for penalty proceedings, and directed the Secretary to file a petition within 45 days. It cautioned that counsel had not shown Augustine was consulted or served and that any settlement motion had to reflect his informed agreement as a party.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(c)
• Outcome: The final individual penalty assessment was reopened and remanded for further proceedings.
• Key point: A proposed global settlement could support reopening, but an individual respondent must be consulted and genuinely agree to any settlement submitted on his behalf.

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)        

v.

MARK AUGUSTINE, employed by

METZGER REMOVAL, INC. [1]

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Docket No. SE 2018-113-M

A.C. No. 31-00057-0444267 A

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, 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. (2012) (“Mine Act”). On March 15, 2018, the Commission received a motion seeking to reopen a penalty assessment against Mark Augustine, an employee of Metzger Removal, Inc., under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that has become a final order of the Commission. Subsequently, the Secretary requested that the Commission grant the motion to reopen in order to facilitate a global settlement of all outstanding citations against Metzger Removal and Mr. Augustine.

Having reviewed the movant’s request and the Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. In order to effectuate the settlement identified as the basis of the unopposed motion to reopen, the parties should promptly file a motion to approve settlement after the Secretary files the petition for assessment of penalty. [2]

/s/
William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Distribution:

Steven D. Weber, Esq.

Parker Poe

Three Wells Fargo Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Ali Beydoun, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Mark Augustine

3533 Alister Ave.

Concord, NC 28027

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

[1] When
initially docketed, the caption in this matter listed Metzger Removal, Inc., as the Respondent. The caption has been modified to reflect that the penalty assessment at issue was assessed against Mark Augustine, an employee of Metzger Removal, rather than the operator.

[2] We note
that the motion to reopen was filed by counsel for Metzger Removal, without any indication that Mr. Augustine had been consulted or that he had been served with the motion. We caution that the other parties must ensure that Mr. Augustine is aware of any motion to approve settlement and that he concurs in that motion. A motion for settlement approval must represent a genuine agreement between all parties. See Sec’y of Labor on behalf of Pendley v. Highland Mining Co., LLC , 29 FMSHRC 164, 165-66 (Apr. 2007) (vacating a settlement agreement which had been jointly proposed by the Secretary and the operator, because the miner on whose behalf the Secretary had filed the discrimination complaint had not been consulted).