Larry Flynn (ALJ decision, September 5, 1991)

Plain-English summary

Larry Flynn challenged the proposed revocation of his certification to take respirable-dust samples. The Secretary's motion to dismiss was briefly late, but Judge Paul Merlin found no prejudice and treated the matter as ready for decision. Applying the ruling in Roberts v. Secretary, the judge held that Flynn's certification interests were entitled to due-process protection, but that the judge had no jurisdiction to hear an independent suit or grant relief. Flynn's contest was dismissed, and the decision notes that he had filed a notice of intervention in the operator's related contests.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(d)
• Outcome: The contest proceeding was dismissed.
• Key point: A certified individual could not obtain relief through an independent contest, although the record indicated that Flynn had sought to intervene in the operator's contests.

Full text (FMSHRC public release)

• FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
  1730 K STREET NW, 6TH FLOOR
  WASHINGTON, D.C. 20006

                            September 5, 1991
  

LARRY FLYNN, : CONTEST PROCEEDING
Contestant :
: Docket No. SE 91-538-R
v. : Decertification Notice
:
: Lad Mining, Inc.
SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH : No. 35 Mine
ADMINISTRATION (MSHA),
:
Respondent : Mine ID 40-02839

DECISION

Before: Judge Merlin
This case is a notice of contest filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(d), seeking to challenge the Secretary's proposed revoca- tion of contestant's status as a person certified by the Secre- tary of Labor to take respirable dust samples. The instant notice relates to citations which the Secretary issued to con- testant's operator, Lad Mining, Inc., for allegedly tampering with dust cassettes. The Secretary has filed a motion to dismiss.
In opposing the motion to dismiss, contestant first raises the Secretary's failure to answer within 30 days. The Secretary's answer was only three days late and the delay was non-prejudi- cial. Equally without merit is contestant's assertion regarding the Secretary's failure to plead jurisdiction. This omission could be easily corrected by an amended answer, but I deem it unnecessary to do so because there is no prejudice and based upon the submissions of the parties the matter is ripe for disposition at this time.
Contestant relies upon and incorporates by reference the arguments contained in the brief filed by the contestant in Fluty v. Secretary, Docket No. KENT 91-898-R. The parties in Fluty have agreed that the decision in Roberts v. Secretary, Docket No. KENT 91-896-R, is controlling in that matter.
On September 4, 1991, I held in Roberts that an individual such as contestant has rights arising from his certification which are entitled to due process protections. However, I further held that I had no jurisdiction to entertain an indepen- dent suit by such a miner or to grant him relief. The issues in Fluty are the same as those presented here and therefore that decision, which is determinative of Fluty, is dispositive of this matter.

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It is noted that contestant's notice of contest represents that the operator here, unlike the operator in Roberts, has filed notices of contest challenging each of the citations issued to it and that contestant has filed a notice of intervention in those cases.
In light of the foregoing, it is ORDERED that this case be and is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Enclosure
Distribution:
Michael W. Boehm, Esq., Spears, Moore, Rebman & Williams, 801 Pine Street, 8th Floor Blue Cross Building, Chattanooga, TN 37401 (Certified Mail) James B. Crawford, Esq., Office of the Solicitor, U. S. Depart- ment of Labor, 4015 Wilson Boulevard, Arlington, VA (Certified Mail)

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

September 5, 1991

KIMMIE NOAH, : CONTEST PROCEEDINGS
Contestant : Docket No. SE 91-544-R
v. : through SE 91-655-R
: Citation No. 9860517; 4/4/91
SECRETARY OF LABOR, : through 9860628; 4/4/91
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Consolidation Coal Company
Respondent : Matthews Mine
:
: Mine ID 40-00520
DECISION
Before: Judge Merlin.
These cases are notices of contest filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), seeking to challenge the Secretary's proposed revocation of contestant's status as a person certified by the Secretary of Labor to take respirable dust samples. Each notice of contest relates to a citation issued by the Secretary to contestant's operator, Consolidation Coal Company, for allegedly tampering with a dust cassette. The Secretary has filed a motion to dismiss and contestant has submitted a memorandum in opposition.
On September 4, 1991, I held in Roberts v. Secretary Docket No. KENT 91-896-R, that an individual such as contestant has rights arising from his certification which are entitled to due process protection. However, I further held that I had no jurisdiction to entertain an independent suit by such a miner or to grant him relief. The issues in Roberts are the same as those presented here and therefore, that decision is dispositive of this matter.
As contestant's memorandum points out, the operator here, unlike the operator in Roberts, has filed notices of contest challenging the citations issued to it. Contestant may wish to consider the possibility of becoming a party to the operator's suits. (See Footnote 1, page 3 of the Roberts decision.)

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In light of the foregoing, it is ORDERED that these cases be and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston National Plaza, P. O. Box 3394, Charleston, WV 25333 (Certified Mail) James B. Crawford, Esq., Office of the Solicitor, U. S. Depart- ment of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
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