Secretary of Labor on behalf of Larry D. Long v. Island Creek Coal Company and Langley & Morgan Corporation (Commission decision, July 25, 1980)

Plain-English summary

The Secretary brought a discrimination case for miner Larry D. Long against Island Creek Coal Company and Langley & Morgan Corporation. The ALJ found violations in a June 1980 ruling but directed the parties to address relief before a final order. Both companies petitioned the Commission for discretionary review. The Commission held that the ALJ had not finally disposed of the case, so the statutory review periods had not begun. It dismissed the petitions as premature and returned the record to the ALJ. This order assessed no penalty or other relief.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and 29 C.F.R. § 2700.65.
• Outcome: Both review petitions dismissed as premature; record returned to the ALJ, with no penalty or relief decided.
• Key point: A judge's ruling that leaves the final order for later does not start the periods for Commission review.

Full text (FMSHRC public release)

CCASE:
SOL V. ISLAND CREEK COAL AND LANGLEY & MORGAN DDATE: 19800725 TTEXT:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION WASHINGTON, DC
July 25, 1980

SECRETARY OF LABOR
on behalf of LARRY D. LONG

v. Docket No. VA 79-81-D

ISLAND CREEK COAL COMPANY
and

LANGLEY & MORGAN CORPORATION

ORDER

Island Creek Coal Company and Langley & Morgan Corporation have filed petitions for discretionary review of what they believe may be the decision of the administrative law judge. We find that the judge's final disposition of the proceedings has not yet been issued and that the petitions were therefore prematurely filed.

This is a discrimination case brought by the Secretary of Labor on behalf of Larry D. Long against Island Creek and Langley & Morgan Corporation ("the operators"). The Secretary alleged that the operators violated section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Supp. II 1978)["the Act"], and in his complaint requested the following relief: a finding that Mr. Long was "unlawfully discriminated against ... for engaging in actions protected under section 105(c)(1)"; an order that the employment record of Mr. Long be completely expunged of all references to an unlawfully issued discharge; an order directing the operators to "cease and desist in ... discriminatory harassment" of Mr. Long; an order directing the of Mr. Long's costs and expenses reasonably incurred for and in payment connection with the institution and prosecution of these proceedings; and the assessment of civil

penalties against each operator.

On June 19, 1980, the Executive Director of the Commission issued a document entitled "Decision" that had been transmitted to him from the administrative law judge. The decision was lengthy, and contained findings of facts and conclusions of law generally unfavorable to the operators. The judge's last conclusion of law declared that the operators had violated section 105(c) of the Act by certain reassignments. Immediately after this conclusion of law, appeared the following:

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ORDER

PENDING FINAL ORDER, Applicant shall have 7 days to submit a proposed order for relief, with service on Respondents. Respondents shall have 7 days from such service to file any response to the proposed order.

On July 14, 1980, Island Creek filed a petition for discretionary review. Island Creek believes, based on the wording of the judge's order and discussions with the judge's office, that the document entitled "Decision" was not intended to constitute the judge's final disposition of the proceeding. It therefore argues the issuance of the decision should not be viewed as having begun the running of the time period for filing a petition for discretionary review. Island Creek notes, however, that this document was transmitted to and issued by the Executive Director, and states that "[s]uch action would thereby terminate the jurisdiction of the Judge under the provisions of [Commission Rule 65(c), 29 CFR] 2700.65(c)." Because Island Creek is uncertain of the consequences of these events, it filed this petition to protect its right to seek discretionary review by the Commission. The issue raised by Island Creek is therefore whether the document issued on June 19, 1980, constituted the judge's final disposition of the proceedings. Langley & Morgan's petition for discretionary review, which was filed on July 18, alleges that the judge's decision is erroneous.

Commission Rule 65 states in part as follows:

2700.65 Decision of the Judge.
(a) Form and content of the Judge's decision. The Judge shall make a decision that constitutes his final disposition of the proceedings. The decision shall be in writing and shall include findings of fact, conclusions of law, and the reasons or bases for them, on all the material issues of fact, law or discretion presented by the record, and an order. If a decision is announced orally from the bench, it shall be reduced to writing after filing of the transcript. An order by a Judge approving a settlement proposal is a decision of a Judge.
(b) Procedure for issuance. The Judge shall transmit to the Executive Director his decision, the record (including the transcript), and as many copies of his decision as there are parties plus seven. The Executive Director shall then promptly issue to each party and each

Commissioner a copy of the decision.
(c) Termination of the Judge's jurisdiction; correction of clerical errors. The jurisdiction of the Judge terminates when his decision has been issued by the Executive Director....

Once a judge's decision that constitutes his final disposition of the proceedings is issued by the Executive Director, the periods for drafting and filing a petition for discretionary review, for the Commission to

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consider and order review of the judge's decision on its own motion, and for the Commission to consider and grant a petition for discretionary review begin to run. Section 113(d)(1) and (2). In view of these consequences, the careful following of our rules, which were designed to ensure the smooth functioning the Commission's review process, is essential.

Commission Rule 65(a), when read as a whole, requires that the decision of the judge contain an order that finally disposes of the proceedings. Inasmuch as the order that appears at the end of the judge's purported decision does not dispose of the proceeding to any extent, the issuance of this decision did not start the running of the review periods in section 113 of the Act. The petitions for discretionary review are therefore premature.

Accordingly, the petitions for discretionary review are, in these circumstances, dismissed as premature. The Executive Director shall return the record to the judge.
Richard V. Backley, Commissioner

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Distribution

Marshall S. Peace, Esq.
Island Creek Coal Company
P.0. Box 11430
Lexington, KY 40575

James S. Greene, Jr., Esq.
P.0. Box 995
Harlan, KY 40831

Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104

Administrative Law Judge William Fauver
FMSHRC
Skyline Center, lOth Floor
5203 Leesburg Pike
Falls Church, VA 22041