Kimmie Noah (ALJ decision, September 5, 1991)

Plain-English summary

Kimmie Noah challenged the proposed revocation of certification to take respirable-dust samples. The related citations had been issued to Consolidation Coal Company for allegedly tampering with a dust cassette. Judge Paul Merlin held that Noah's certification interests were entitled to due-process protection, but that the judge had no jurisdiction to hear an independent suit by the miner or grant relief. The judge dismissed the contest proceedings and noted that Noah could consider joining the operator's contests.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(d)
• Outcome: The contest proceedings were dismissed.
• Key point: The ALJ held that a certified miner could not pursue an independent action in these proceedings, although Noah could consider becoming a party 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

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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Page 2

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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