Secretary of Labor v. Carter Machinery Co., Inc.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Carter Machinery for an alleged motor-oil accumulation near the turbo and alternator of a maintenance truck under 30 C.F.R. § 77.1104. Carter argued that the Secretary lacked evidence about the material, amount, temperatures, and fire hazard, while the Secretary's conference litigation representative sought judgment for MSHA. Judge William B. Moran found genuine disputes over whether combustible material accumulated in an amount and location capable of creating a fire hazard, so neither side was entitled to summary decision. He also denied the non-attorney representative permission to make legal arguments before him, criticizing the filing for discussing settlement negotiations and failing to meet the summary-decision rule. The citation remained set for hearing unless the parties submitted an adequately supported settlement.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1104
• Outcome: Both summary-decision motions were denied, the non-attorney representative was denied permission to practice in that manner, and the case remained set for hearing.
• Key point: Disputed facts about the identity, quantity, temperature, and ignition risk of an alleged oil accumulation require a hearing rather than summary decision.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW

COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania

Avenue, NW, Suite 520N

Washington, DC

20004-1710

Phone: (202) 434-9933

| Fax: (202) 434-9949

January 9, 2018   

SECRETARY

OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE

SAFETY AND HEALTH                     :

ADMINISTRATION

(MSHA),                       :     Docket No. VA 2017-0104

Petitioner,                          :     A.C.

No. 44-07355-430464

v.                                                   :    

:    

CARTER

MACHINERY CO INC,                    :     Mine: Surface Mine No. 1

Respondent.                      :

ORDER ON MOTIONS FOR SUMMARY

DECISION

Before: 

Judge Moran

This

case is before the Court upon a petition for assessment of a civil penalty

under section 105(d) of the Federal Mine Safety and Health Act of 1977.  The Respondent

filed a motion for summary decision (“Respondent’s Motion”) and Brief in

Support thereof   (“Respondent’s Brief”).  Thereafter, the Secretary of Labor,

acting through a non-attorney, a conference litigation representative, or

“CLR,” filed a response to that motion and, in the same response, included a

cross-motion for summary decision. (“CLR Response and Cross-Motion”).  For the

reasons which follow, the Court DENIES both motions. The Court further finds that

the CLR, a non-attorney, is attempting de facto to practice law without

a license, and therefore, as explained below, the CLR is DENIED permission by

the Court to practice before it in such a manner.        

Background

This docket involves a single

section 104(a) citation alleging a violation of 30 C.F.R. §77.1104. [1]  

The cited standard titled “Accumulations of combustible materials,”

provides “Combustible materials, grease, lubricants, paints, or flammable

liquids shall not be allowed to accumulate where they can create a fire

hazard.”

The

Citation alleges that the Respondent allowed combustible material, namely motor

oil, to accumulate in the engine compartment of a front-end loader.  In

particular, the Citation, which was issued on December 19, 2016, alleged that “[a]ccumulations

of combustible material in the form of engine oil was [sic] located on the

right side of the engine of the Kenworth maintenance truck c/n 1357, tag

149087.  The oil was covering the engine block behind the turbo and

alternator.  The accumulations were being caused by an oil leak at the filter

housing.  Oil had puddle[d] under the truck due to this oil leak. Oil leaks

near the turbo and electrical components such as the alternator are reasonably

likely to cause a fire resulting in serious injuries. [2]

SUMMARY DECISION

The

Commission’s procedural rules speak to Summary decision of the Judge at 29

C.F.R. § 2700.67 which, in pertinent part, provides

(b) Grounds . A motion for

summary decision shall be granted only if the entire record, including the

pleadings, depositions, answers to interrogatories, admissions, and affidavits,

shows:

(1) That there is no genuine

issue as to any material fact; and

(2) That the moving party is

entitled to summary decision as a matter of law.

(c) Form of motion . A

motion shall be accompanied by a memorandum of points and authorities

specifying the grounds upon which the party seeks summary decision and a

statement of material facts specifying each material fact as to which the party

contends there is no genuine issue. Each material fact set forth in the

statement shall be supported by a reference to accompanying affidavits or other

verified documents.

(d) Form of opposition . An

opposition to a motion for summary decision shall include a memorandum of

points and authorities specifying why the moving party is not entitled to

summary decision and may be supported by affidavits or other verified

documents. The opposition shall also include a separate concise statement of

each genuine issue of material fact necessary to be litigated, supported by a

reference to any accompanying affidavits or other verified documents. Material

facts identified as not in issue by the moving party shall be deemed admitted

for purposes of the motion unless controverted by the statement in opposition.

If a party does not respond in opposition, summary decision, if appropriate,

shall be entered in favor of the moving party.

(e) Affidavits . Supporting

and opposing affidavits shall be made on personal knowledge and shall show

affirmatively that the affiant is competent to testify to the matters stated.

Sworn or certified copies of all papers or parts of papers referred to in an

affidavit shall be attached to the affidavit or be incorporated by reference if

not otherwise a matter of record. The judge shall permit affidavits to be

supplemented or opposed by depositions, answers to interrogatories, admissions,

or further affidavits.

29 C.F.R. § 2700.67 (emphasis

added)

In

John Richards Construction , 39 FMSHRC 959, May 2017, the Commission

noted that it “has long analogized summary decision to summary judgment under

Rule 56 of the Federal Rules of Civil Procedure, Fed R. Civ. P. 56. See,

e.g., Kenamerican Res., Inc., 38 FMSHRC 1943, 1946 (Aug. 2016); Energy

West Mining Co ., 16 FMSHRC 1414, 1419 (July 1994).”  Id. at *960. 

When the record shows disputed material facts, summary decision is

inappropriate.  Id.

In

Sec. of Labor v Sunbelt Rentals, 39 FMSHRC 1183 May 2017, (“ Sunbelt ”)

Judge McCarthy noted that in “[a]pplying these rules, the Commission has long

recognized that summary decision is an extraordinary procedure analogous to

Rule 56 of the Federal Rules of Civil Procedure, under which “the Supreme Court

has indicated that summary judgment is authorized only ‘upon proper showings of

the lack of a genuine, triable issue of material fact.”’ Energy West Mining

Co ., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co .,

3 FMSHRC 2470, 2471 (Nov. 1981) and Celotex Corp. v. Catrett , 477 U.S.

317, 327 (1986)); see also Lakeview Rock Prods., Inc ., 33 FMSHRC 2985,

2987-88 (Dec. 2011) (reiterating the Commission’s summary decision rules).  In

reviewing a record on summary decision, a judge must evaluate the evidence in

the light most favorable to the party opposing the motion. Hanson Aggregates

New York, Inc ., 29 FMSHRC 4, 9 (Jan. 2007); see also Poller v. Columbia

Broadcasting Sys., Inc ., 368 U.S. 464, 473 (1962); United States v.

Diebold, Inc ., 369 U.S. 654, 655 (1962)).” Sunbelt at *1185

As

noted in Crown Resources v Sec. of Labor , “Summary judgment should not

be granted ‘unless the entire record shows a right to judgment with such

clarity as to leave no room for controversy and establishes affirmatively that

the adverse party cannot prevail under any circumstances.’ Campbell v.

Hewitt, Coleman & Assocs., Inc ., 21 F.3d 52, 55 (4th Cir. 1994) ... For

summary judgment to be appropriate, the evidence must do more than allow the

court to find in the movant’s favor, it must ‘ require that the court do

so.’ Hunt v. Cromartie , 526 U.S. 541, 552 (1999) (emphasis in original).

If, when viewing the evidence and drawing all permissible inferences in favor

of the non-movant, the record could support either party, then resolution at

the summary judgment stage is inappropriate. Id.; Anderson v. Liberty Lobby,

Inc ., 477 U.S. 242, 251-55 (1986).  Disposition by summary decision is

appropriate provided: (1) the entire record establishes that there is no

genuine issue as to any material fact; and (2) the moving party is entitled to

summary decision as a matter of law. 29 C.F.R. §2700.67(b). See Celotex

Corp. v. Catrett , 477 U.S. 317, 327 (1986); Mo. Gravel Co ., 3 FMSHRC

2470, 2471 (Nov. 1981). If the moving party fails to meet its burden, then

summary decision must be denied, regardless of the sufficiency of the

opposition. Even the absence of an opposition does not entitle the movant to

summary decision when the motion is inadequately supported. See Adickes v.

S.H. Kress & Co ., 398 U.S. 144, 159-61 (1970) (summary judgment must be

denied where the evidence in support of the motion does not establish the

absence of any genuine issue, even if no opposing evidence is presented). See

also In re Rogstad , 126 F.3d 1224, 1227-28 (9th Cir. 1997); Campbell ,

21 F.3d at 55-56. 39 FMSHRC 1536, *1537, Crown Resources v. Sec of Labor ,

July 2017 Judge Gill

Respondent’s Motion for Summary

Decision and

Brief in Support [3]

The Respondent

contends that the Secretary cannot establish any of the three elements for the

cited standard: combustible material; which material was allowed to accumulate;

in an area where the accumulation can create a fire hazard.  Respondent asserts

there is no genuine issue of material fact because the Secretary has no

evidence as to the quality of the substance on the engine block, nor its

quantity, nor the temperatures to which such substance would be exposed.  Because

the Secretary took no samples of the material, nor did he take measurements of

its quantity or the temperatures involved, there is no evidence to support the

alleged violation.    Respondent’s Motion at 2. 

Pointing to the

Secretary’s responses to the Respondent’s requests for admission, Respondent

notes that the Secretary admits he did not take any temperature readings of the

truck, Requests for Admission (“RFA”) 5 and 9, nor take such readings while the

truck was in operation after 15 minutes, nor after 30 minutes, 1 hour, 2 hours

or 3 hours, Id. at 3, RFAs 10-14.  Respondent asserts that

Secretary cannot demonstrate that the material was motor oil, nor that it was

allowed to accumulate, nor that such amounts created a fire hazard.  Id. at

4.  Respondent contends that the evidence does not show that the surface

temperature of the equipment was high enough to cause an auto ignition of the

accumulation, arguing that, if that were true, other engine parts would be

subject to combustion. [4]  

Id . at 5.  Respondent also argues that, even if the motor oil is assumed

to have a flashpoint between 399 and 445 degrees, that does not establish the

presence of a fire hazard because it has not been shown that the location of

any such accumulations was sufficient to create a fire hazard.   Id. at

6. In sum, the Respondent maintains that a violation of the cited standard cannot

be established simply because of the alleged presence of motor oil on an engine

when coupled with the fact that an engine produces heat.

The non-attorney

conference litigation representative’s Response to Respondent’s Motion for

Summary Decision and Cross-Motion for Summary Decision [5]

Conference

litigation representative David Steffey filed the Secretary of Labor’s Response

to Carter Machinery Co. Inc.’s Motion for Summary Decision and Cross-motion for

Summary Decision. December 8, 2017 (“CLR Response and Cross-Motion”).  Speaking

to the standard cited, the CLR refers to “[c]ase law” that sets forth the

elements of the standard at issue, 30 C.F.R. §77.1104.  In doing so, the CLR

cites Maxxim Rebuild Co., LLC, 35 FMSHRC 3261, 3268 (Oct. 2013) (ALJ)

and Northwestern Resources , 21 FMSHRC 431, 438 (Apr. 1999) (ALJ) and

other ALJ decisions.  CLR Response and Cross-Motion at 2-3.  The CLR then

proceeds to present his views of case law interpretation of the terms “combustible

material,” “accumulations,” and the meaning of “can” in the context of whether

material can cause a fire hazard.  From there, citing another ALJ

decision, the CLR addresses the Secretary’s burden where an accumulation of

combustible material on an engine was involved.  Each of the CLR’s references

to and legal interpretations of the cited cases, constitute, in the opinion of

the Court, the unauthorized practice of law.  

From

that display of erudition, the CLR makes a host of contentions, including that

“[t]he normal operating temperature may be relevant to whether a fire was

reasonably likely to occur but it is not determinative of whether a fire ‘can’

occur,” that the issuing inspector stated that oil leaks where located as

alleged by the inspector are reasonably likely to cause a fire, that the

Secretary need not prove his allegations beyond a reasonable doubt, and that

the inspector, as a duly authorized representative of the Secretary, made

observations about the combustibility and the quantity of the oil.  CLR

Response and Cross-Motion at 4, 5.  As such, applying the framework and

definitions provided by the Commission, and using logic and common sense, the

CLR asserts that it has been established that there was oil, that the oil was

combustible and in sufficient quantity to cause a fire.  Id.  

Given

the above, that leaves, according to the CLR, only the issue of whether the

accumulation was in a location where it could cause a fire.  Id. at 5. 

The CLR points to turbo chargers as a significant ignition source, citing a

2004 fatality where hydraulic oil sprayed on a turbo charger and the flash

point of hydraulic oil.  Id.   In this instance, the CLR contends, the

normal operating temperature of the engine “goes to the likelihood of a fire

and not whether a fire was possible.” Id.

The

CLR winds up his Response and Cross-Motion by asserting that the reasons he has

presented support denial of the Respondent’s Motion.  Id. at 6.

The

CLR then devotes only a single paragraph of his Response and Motion to his own

cross-motion for summary judgment, wherein he contends

Because a preponderance of the

undisputed evidence demonstrates that combustible material was allowed to

accumulate where it could create a fire hazard, summary decision should be

granted in the Secretary’s favor and the judge should find that §77.1104 was

violated. The parties agreed during settlement negotiations that an injury

causing event was unlikely and that the violation would be modified to Non

S&S and the Respondent would accept the citation being modified to Non

S&S and pay a penalty of $345.00. The Secretary does not intend to present

evidence or argument that an injury was reasonably likely to occur or that the

violation was S&S. As such, there are no further issues to be decided.  The

parties previously agreed that a penalty of $345.00 was appropriate given the

factors set forth at Section 110(c) of the Act. The affidavit of Inspector

Clevinger sets forth the basis for the negligence determination. The

administrative law judge should find that the violation was not S&S and

should assess a penalty of $345.00.

CLR Response and Cross-Motion at

6.

The CLR’s

cross-motion for summary judgment fails, completely, in form and substance to

meet the requirements of Commission procedural rule 29 C.F.R. § 2700.67.

Further, as Respondent notes in its Reply to the cross-motion, the CLR’s

invoking claims about the parties agreements in their settlement negotiations

lays bare, starkly, the hazards of having non-attorneys practice law. 

Respondent

Carter Machinery’s Reply in Opposition to the Secretary’s cross-motion for

summary decision.

Respondent

Carter Machinery filed a Reply in further support of Respondent Carter

Machinery Co. Inc’s Motion for summary decision and memorandum in opposition to

Petitioner’s Cross-Motion for summary decision. [6]  

(“Carter Reply”)

Carter

contends that although the issuing inspector’s affidavit asserts that “oil

leaks near high heat sources such as the exhaust turbo and alternator can cause

a fire,” such an assertion is not the equivalent of a fact.  Carter Reply at

3.  The same is true, Carter asserts, with a host of other claims by the

inspector. [7]  

On that basis, Carter asserts that the inspector’s affidavit “is nothing more

than the self-serving ipse dixit of an interested party.”  Id.  

Similarly,

Carter asserts that the Secretary’s reference to an MSHA report involving a

fatality from hydraulic oil spraying onto a turbocharger is not relevant

because, among other distinctions, a different machine and a different

combustible material were involved in that instance.  Id. at 4.

Of

more significance, in the Court’s estimation, Carter notes that the Secretary’s

filing fails to comply with the provision in the Commission’s rule addressing

summary decision that such motions are to be accompanied by “a statement of

material facts specifying each material fact as to which the party contends

there is no genuine issue.  Each material fact set forth in the statement shall

be supported by a reference to accompanying affidavits or other verified

documents.”  29 C.F.R. § 2700.67(c), Carter Reply at 6. 

DISCUSSION

Summary

Decision is not appropriate

In

order to prevail on a motion for summary decision, the initial hurdle requires

showing that there is no genuine issue as to any material fact.  One does not advance

to the second step, establishing that the moving party is entitled to prevail

as a matter of law, until the first hurdle, no genuine issue of material fact

has been crossed.  Upon review of the motions, the Court concludes that there

are issues of material fact and therefore summary decision is inappropriate.

The

material facts involve three elements, establishing: the presence of combustible

material; an accumulation of such material; and an accumulation of a degree that

it can create a fire hazard.  Considering the submissions, the Court finds that

genuine issues of material fact remain for each of these elements.  Whether the

Secretary will be able to establish each of the elements for the alleged

violation of 30 C.F.R. §77.1104, absent an appropriately substantiated

settlement, requires a hearing. [8]   

The

CLR’s Motion violates Commission Procedural Rule 29 C.F.R 2700.3(b) in a number

of particulars.

The Secretary’s non-attorney

representative, conference litigation representative David Steffey filed a

notice of limited appearance. That notice asserts “The undersigned is

authorized to represent the Secretary in all pre-hearing matters in this

case. The undersigned may appear at a hearing on behalf of the Secretary if

an attorney from the Office of the Solicitor is also present . In the event

that the undersigned becomes authorized to appear at a hearing on behalf

of the Secretary without an attorney from the Office of the Solicitor present,

an Unlimited Notice of Appearance of Secretary's Representative will be filed

prior to the hearing.” March 14, 2017, Notice of Limited Appearance of Secretary’s

Representative at 1 (emphasis added).    

The

CLR is apparently of the “limited” representative category.  There are several

problems with the Notice of Limited Appearance (“Notice”).  First, as the title

of “conference litigation representative” informs, he is a conference

representative.  It is true that in its October 6, 2017 Decision Denying

Settlement, the Court accepted the CLR but that acceptance was only applicable

to that limited appearance.  When confined to that role, acting as an MSHA

conference rep, the Court does not take issue with that limited capacity.  Typically,

in such circumstances, if a settlement motion is presented to the Court, the

motion is focused on facts, not law, in support of penalty reductions.  

However,

in this instance the CLR went far beyond that legitimate role of presenting

factual information.  In the CLR’s filing of his “Notice” he acknowledges that

he is limited to pre-hearing matters and that if a hearing ensues an attorney

from the Office of the Solicitor will be present.  However, merely filing a

“Notice,” does not mean that one is accepted to practice before the

Commission.   Commission Procedural Rule 29 C.F.R 2700.3(b) does not leave that

decision to a non-attorney filing such a Notice.  That subsection provides

under the subject “Other persons” that “A person who is not authorized to

practice before the Commission as an attorney under paragraph (a) of this

section may practice before the Commission as a representative of a party if he

is: (1) A party; (2) A representative of miners; (3) An owner, partner, officer

or employee of a party when the party is a labor organization, an association,

a partnership, a corporation, other business entity, or a political

subdivision; or (4) Any other person with the permission of the presiding judge

or the Commission.” 29 C.F.R 2700.3(b) (emphasis added).

Only

subsection 4 of the procedural rule applies to the CLR and the Court has not

given permission for the CLR to practice before the Commission in this

matter. 

In

the Court’s estimation the non-attorney CLR is attempting to practice law

without possessing a law license. 

In

filing his Response to Respondent’s Motion for Summary Decision and

Cross-Motion for Summary Decision, the CLR’s submission does not list any

attorney for the Office of the Solicitor on the submission.  Plainly, the CLR

is not licensed to practice law, and he does not make any claim that he holds

such a law license.  By filing a motion, a legal document, and by making

arguments as to the applicability of summary decision, the CLR has engaged in

the practice of law without a license.  Besides the schooling and licensing

requirements, prerequisites for the practice of law, though such absences are sufficient

to establish a serious transgression, the Secretary’s CLR has provided a

practical example of the tendency of the    non-licensed to, as it were, step

in it.  Carter correctly observes in its Reply that the non-attorney has

referenced that the parties have engaged in settlement negotiations, noting

that “settlement discussions are not considered by the Court, or by courts

generally, when deciding the merits of a case for many reasons, not the least

of which is that considering statements made in settlement negotiations would

discourage the parties in any case from discussing settlement at all.”  Carter

Reply at 5.   In fact, the transgression by the CLR was egregious, as the CLR

disclosed in his Response and Cross-Motion that “[t]he parties agreed during

settlement negotiations that an injury causing event was unlikely and that the

violation would be modified to Non S&S and the Respondent would accept the

citation being modified to Non S&S and pay a penalty of $345.00.” Id. at

6.

Licenses

are required for many occupations including such diverse field as auctioneers,

projection operators, security guards, makeup artists, massage therapists and

manicurists, to name a few.  Licensing is important to help ensure competence. 

A fortiori, this is especially true in complex professions such as law,

medicine and accounting.  The ability to practice the profession of law

requires considerable schooling beyond the attainment of a college degree.   

To help ensure competence, all states have licensing requirements and nearly

all require that a bar exam be passed before a license is issued. 

Unlicensed

to practice law and out of his depth, the non-attorney conference litigation

representative’s Response to Respondent’s Motion for Summary Decision and

Cross-Motion for Summary Decision motion should only have been filed by an

attorney.  The Court wishes to make it clear that it is sympathetic to the

unnecessary position the Secretary has placed the unfortunate CLR. 

The

Secretary is on notice that henceforth the Court will only consider motions

which contain legal arguments when signed by a licensed attorney. 

Absent

an appropriately supported amended motion to approve settlement, and the

Court’s approval of such motion, this matter, as previously noticed, remains

set for hearing on February 20, 2018.

SO

ORDERED .

/s/

William B. Moran

William B. Moran

Administrative

Law Judge

Distribution:

CLR

David A. Steffey, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA

24273

Travis

W. Vance, Esq., Fisher & Phillips LLP, 227 W. Trade Street, Suite 2020,

Charlotte, NC 28202

[1] Part 77 sets

forth mandatory safety standards for surface coal mines and surface work areas

of underground coal mines.

[2] The Citation

also stated that “Standard 77.1104 was cited 8 times in two years at mine

4407[355] (0 to contractor BZ5).” It was marked as “Reasonably Likely,” “lost

workdays or Restricted Duty,” “Significant and Substantial,” of “Moderate”

negligence, with 1 person affected.

[3] Respondent’s

Motion for summary decision was submitted by an attorney.  The same attorney

also filed the Respondent’s Reply in Opposition to the Secretary’s cross-motion

for summary decision.

[4] In making this

argument, Respondent takes issue with an article about turbochargers, asserting

that it does not advance the Secretary’s case.  The Court views this issue as

one best resolved through testimony and, if such testimony is permitted, then followed

by cross-examination. 

[5] The CLR also

opines about the Respondent’s reference to the term “prevailing party” offering

his thoughts about the Equal Access to Justice Act.  CLR Response and Cross-Motion

at 2.   In this setting of litigation, such expressions constitute the practice

of law.

[6] In reviewing

the submissions from both sides, this Order only addresses contentions that

pertain to the issue of the appropriateness of summary decision.  Thus, legal

theories in support of such motions, asserting that one is entitled to summary decision

as a matter of law, are not addressed until the prerequisites are present. 

Thus, it must first be determined that there is no genuine issue as to any

material fact.

[7] Some of the

assertions made by the inspector, for which Carter asserts there is a lack

factual support, include his claims that oil leaks near high heat sources such

as the exhaust turbo and alternator can cause a fire, that the flash point of

engine oil is far less than the temperatures of the turbo or arc at the

alternator, that the approximate flash point of the oil is approximately 420

degrees Fahrenheit and that the turbo and arc at alternator can exceed 1500

degrees Fahrenheit.  Carter Reply at 3.

[8] In the Court’s October

6, 2017 Decision Denying Settlement, it was noted that the Secretary’s original

motion to approve settlement, dated July 7, 2017, presented no relevant

information to support the proposed settlement.  Rather, the motion simply made

an autocratic pronouncement to the Court that “[t]he Secretary has determined

that the S&S and gravity determinations in the citation at issue shall be

modified as discussed above. Substantive modifications to citations and orders,

including the S&S designation, are within the prosecutorial discretion of

the Secretary. Mechanicsville Concrete Inc ., 18 FMSHRC 877 (1996). The

Commission’s review of settlement proposals involving such substantive

modifications is limited to whether the agreed-upon penalty amount is

consistent with the agreed-upon substantive modification. Here, a $147.00

reduction in the penalty from $492.00 to $345.00 is appropriate and supported

by the reduction in the gravity findings. The parties agree that the

agreed-upon penalty amount is reasonable given the circumstances surrounding

the violation.”  Motion at 2-3. The Court reminded the CLR that Commission

Procedural Rule 31(b), titled, “Content of motion,” and subsection (b)(1)

subtitled “Factual support,” require that all motions to approve settlement

“include . . . facts in support of the penalty agreed to by the parties.”  29

C.F.R. § 2700.31(b)(1).  The CLR’s statement departs from Rule 31(b), and

challenges the scope of the Commission’s authority to approve settlements under

section 110(k) of the Mine Act.”   The Court continued, informing that “[w]hen Commission

judges approve settlements, they are required under Procedural Rule 31 to set

forth the reasons for approval of settlements and those reasons shall be

supported by the record.  29 C.F.R. § 2700.31(g)  [and that it is] therefore

improper for this Court to issue an order approving a settlement in the absence

of any factual information in the record to support the proposed settlement.”

Decision Denying Settlement at 2.