Secretary of Labor on behalf of Clarence Ball v. B&B Mining Company, Inc., et al. (Commission decision, June 13, 1983)

Plain-English summary

The Secretary sought Commission review in a miner discrimination case involving B&B Mining and other respondents. The review concerned how to assess penalties in discrimination cases and what interest rate to apply to backpay. The Secretary later reported that a penalty had been assessed and paid, and that the miner's backpay and interest had been resolved by an agreement in bankruptcy proceedings. The Commission found that this case no longer presented a substantial question warranting review. It vacated its direction for review and left the ALJ decision as the final Commission order without deciding the legal questions or whether the case was moot. The Commission cautioned that parties resolving a pending case should seek an order from the tribunal before putting their agreement into effect.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c) and § 823(d)(2)(A).
• Outcome: Direction for review vacated; ALJ decision stands as the final Commission order. The order assesses no new penalty.
• Key point: The Commission declined to decide the substantive review questions after the Secretary reported that the dispute had been resolved.

Full text (FMSHRC public release)

CCASE:
CLARENCE BALL (MSHA) V. B & B MINING,
LAUREL MOUNTAIN MINING,
ROBERT ESSEKS, JODA BLANKENSHIP
DDATE:
19830613
TTEXT:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 13, 1983

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

on behalf of Clarence Ball Docket No. VA 80-128-D
v.

B&B MINING COMPANY, INC.,
LAUREL MOUNTAIN MINING COMPANY,
ROBERT ESSEKS, JODA BLANKENSHIP

ORDER

This case is before the Commission upon grant of a petition for discretionary review filed by the Secretary of Labor. 30 U.S.C. 823(d)(2)(A). The issues upon which review was granted concern th appropriate procedures for assessing penalties in discrimination cases brought pursuant to 30 U.S.C. 815(c), and the appropriate rate of interest to be applied to backpay awards in such proceedings.

Subsequent to our granting of the petition for discretionary review, the Secretary filed a motion to "withdraw his appeal" and for "dismissal of the proceeding." The Secretary asserts that a penalty has since been separately assessed and paid, and that the amount of backpay and interest payable to the miner has been resolved by an agreement reached in bankruptcy proceedings involving the operator. Therefore, the Secretary submits that the controversies before the Commission in this case are moot. No opposition to the Secretary's motion was filed. We find it unnecessary to reach the questions of whether the issues in the proceeding before the Commission are moot or, if so, whether dismissal would be required. See Climax Molybdenum Co. v. Secretary of Labor & FMSHRC, No. 80-2187, 1Oth Cir (March 21, 1983), slip op. at 7-10. Nor do we need to reach the Secretary's argument, in response to our order to show cause, concerning the Commission's jurisdiction over settlements in discrimination proceedings. The questions of law and policy upon which discretionary review was granted in this case are also pending before the Commission in other cases. See e.g., Arkansas-Carbona Co., Docket No. CENT 81-13-D; Ottawa Silica Co., LAKE 81-163-DM. In light of this fact and based
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on our review of the entire record in the present case, we find that the case before us no longer presents a "substantial question of law, policy or discretion." 30 U.S.C. 823(d)(2)(A)(ii)(IV). Accordingly, our direction for review in this case is hereby vacated and the administrative law judge's decision stands as the final order of the Commission. See 30 U.S.C. 823(d)(1).

We wish to point out, however, that the procedure followed in the present case exposes the parties as well as the effectiveness of their compromise agreement to unnecessary risks. Where a matter is in litigation before any tribunal, it is eminently sensible, if not legally mandated, to seek an order from that tribunal before a "binding" agreement between the parties that purportedly disposes of that litigation is effectuated. See also Matter of Gary Aircraft Corp., 698 F.2d 775 (5th Cir. 1983), and cases cited therein.
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Distribution

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Robert T. Copeland
Copeland & Thurston, P.C.
212 West Valley Street
P.0. Box 1036
Abingdon, Virginia 24210

C. Adrian White
1200 Euclid Avenue
P.0. Box 309
Bristol, Virginia 24203