Island Creek Coal Company

Plain-English summary

The Secretary asked the Commission to reconsider a split decision that had affirmed in result a judge’s finding that Island Creek did not violate 30 C.F.R. § 75.1725(c). The Secretary argued that the Commission had failed to address whether the operator violated the standard because a belt was energized during repair work. The majority held that a reconsideration petition should identify overlooked facts or legal arguments, a change in controlling law, or similar grounds, and may not be used to raise an argument that could have been made earlier. It denied the motion. Chairman Jordan dissented, stating that the Secretary had consistently argued that the belt needed to be de-energized as well as blocked against motion.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1725(c); 29 C.F.R. § 2700.78
• Outcome: The Secretary’s motion for reconsideration was denied.
• Key point: A reconsideration petition is not a vehicle for presenting a legal argument that could have been raised in the original proceeding.

Full text (FMSHRC public release)

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

                                    February 9, 2001

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. VA 99-11-R
:
ISLAND CREEK COAL COMPANY :

BEFORE: Jordan, Chairman; Riley and Verheggen, Commissioners1

                                        ORDER

BY: Riley and Verheggen, Commissioners

    The Commission issued its decision in this proceeding on July 31, 2000, in which, by a

split vote, it affirmed in result the judge’s decision that Island Creek Coal Company (“Island
Creek”) did not violate 30 C.F.R. § 1725(c). Island Creek Coal Co., 22 FMSHRC 823, 825 (July
2000). On August 8, 2000, the Secretary of Labor filed a Motion for Reconsideration pursuant to
Commission Procedural Rule 78, 29 C.F.R. § 2700.78, requesting us to reconsider our separate
opinions. Island Creek filed a response opposing the petition on August 16, 2000.

    This case involved an incident where a miner was standing on a belt to perform repairs to

the drive mechanism of an adjacent belt. 22 FMSHRC at 823-24. When the belt on which the
miner was standing, the 5-B belt, was energized and began moving, the miner was injured. Id. at

824. The Secretary cited the operator under section 1725(c), which requires that “[r]epairs or
     maintenance shall not be performed on machinery until the power is off and the machinery is
     blocked against motion, except where machinery motion is necessary to make adjustments.”
     From the inception of this case, however, the Secretary has asserted that the violation occurred
     because the 5-B belt was not “locked and tagged out.” See 22 FMSHRC at 826 (Comm’r Riley),
     830 (Comm’r Verheggen). A belt is locked and tagged out when “‘a lock and tag are put on the

     1
     Commissioner Beatty recused himself in this matter and took no part in its
     consideration.

                                    23 FMSHRC 138
     

cathead of a belt at the power source [to ensure] that after the power is turned off on a belt, no
one else can turn the power back on.’” Id. at 826.

    The standard under which a Rule 78 petition should be considered was mentioned briefly

in Morgan v. Arch of Illinois, 22 FMSHRC 586 (May 2000), in which the Commission noted that
the petitioner had “not raised any new arguments concerning the judge’s decisions that the
Commission [had] not already considered.” Id. at 586. Federal appeals courts have held that
under Rule 40 of the Federal Rules of Appellate Procedure, a petition for rehearing is
“appropriate where . . . a petitioner believes the court has overlooked or misapprehended
significant facts or legal arguments.” Mancuso v. Herbert, 166 F.3d 97, 99 (2d Cir. 1999).
Courts construing motions for reconsideration made to district courts under Rule 59(e) of the
Federal Rules of Civil Procedure have held that such motions “‘should not be granted, absent
highly unusual circumstances, unless the district court is presented with newly discovered
evidence, committed clear error, or if there is an intervening change in the controlling law.’”
McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citations omitted, emphasis in
original). Nor should such petitions “be used to raise legal arguments which could and should
have been made before [a decision] was issued.” Lockard v. Equifax, Inc., 163 F.3d 1259, 1267
(11th Cir. 1998). The Lockard court noted that “[d]enial of a motion for reconsideration is
‘especially soundly exercised when the party has failed to articulate any reason for the failure to
raise the issue at an earlier stage in the litigation.’” Id. (citation omitted); see also GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1387 (10th Cir. 1997) (“it is ordinarily
inappropriate for a party to raise new legal arguments” in a motion for reconsideration).

    Petitions made to the Commission under Rule 78 ought, at the very least, to bring to the

Commission’s attention facts or legal arguments the petitioner believes were overlooked or
misapprehended, Mancuso, 166 F.3d at 99, or point to a change in controlling law, see United
States v. Reilly, 91 F.3d 331 (2d Cir. 1996). Such petitions should also not merely raise
arguments the Commission has already considered, Morgan, 22 FMSHRC at 586, or attempt to
raise new legal arguments, Lockard, 163 F.3d at 1267.

    The gravamen of the Secretary’s argument for reconsideration here is that we failed to

reach the issue of whether “the operator violated the standard because the 5-B belt was
energized.” Mot. at 3. The Chairman also states in her dissent that the Secretary has “made
clear” in prosecuting this case the requirement in section 75.1725(c) “that the belt be
de-energized.” Slip op. at 5.

    We find the Chairman’s assertion disingenuous. The Chairman herself recognized in the

first decision in this case that “the Secretary has argued both below and on review that the
regulation required Island Creek to lock and tag out the belt during maintenance work.” 22
FMSHRC at 835 (separate opinion of the Chairman and Commissioner Marks). In fact, she went
to great lengths in that opinion to distance herself from the Secretary’s theory of the case when
she and Commissioner Marks stated “we are not bound by the Secretary’s theory in making our
determination . . . . We cannot let the Secretary’s more complicated litigation posture obfuscate

                                     23 FMSHRC 139

the straightforward fact that Island Creek simply did not block the 5-B belt against motion . . . .”
Id. Indeed, nowhere in this earlier opinion does the Chairman mention much less discuss what
the Secretary had purportedly “made clear throughout this litigation.” Slip op. at 4. That is
because at the time the Commission first considered this case, like now, the fact was and remains
that at no stage of these proceedings has the Secretary ever explicitly argued that one of the bases
for her citation was that the 5-B belt was unexpectedly energized. In other words, the Secretary
has never argued in the alternative, either before us (including in her petition for discretionary
review) or the judge, that even if her argument that “blocked against motion” really means
“locked and tagged out” was rejected, that an independent basis for finding Island Creek liable
was that the 5-B belt was energized. See 30 U.S.C. § 823(d)(2)(A)(iii) (“Each issue [in a petition
for discretionary review] shall be separately numbered and plainly and concisely stated, and shall
be supported by detailed citations to the record when assignments of error are based on the
record, and by statutes, regulations, or principal authorities relied upon.”). Although the
Chairman states that we have “overlooked” the Secretary’s argument on this point, there was not
anything to overlook because such an argument simply was not there.

    We find that a Rule 78 petition is an inappropriate vehicle to raise a legal argument that

“could . . . have been made” in the proceedings below. Lockard, 163 F.3d at 1267. We find this
especially true in light of the Secretary’s failure to explain in the instant petition why she failed to
raise this argument earlier. Id. Accordingly, the Secretary’s motion for reconsideration is
denied.2

                                           James C. Riley, Commissioner


                                           Theodore F. Verheggen, Commissioner


   2
     We note with concern that in the instant motion, the Secretary continues to confuse the

issue when she states that “the 5-A and the 5-B belts were not locked and tagged out or otherwise
blocked against motion.” Sec’y Mot. at 3 (emphasis added). This statement suggests that
locking and tagging out is equivalent to blocking against motion, a proposition we both continue
to categorically reject as contrary to the regulation at issue.

                                      23 FMSHRC 140

Chairman Jordan, dissenting:

    In their initial opinions in this matter, my colleagues focused almost exclusively on their

disapproval of the Secretary’s position that the operator failed to block the conveyor belt against
motion because it was not locked and tagged out. Island Creek Coal Co., 22 FMSHRC 823,
825-34 (July 2000). They reiterate this view in their order denying the Secretary’s motion for
reconsideration. Slip op. at 3 n.2. However, as Commissioner Verheggen explained in his initial
opinion in this case, the standard requires that when machinery is being maintained or repaired,
“it must be (1) de-energized and (2) ‘blocked against motion.’” 22 FMSHRC at 831 (emphasis
added). Neither the operator nor my colleagues have asserted that only one of these two
requirements need to be met to comply with the standard. Nonetheless, my colleagues fail to
explain why their rejection of the Secretary’s “lock and tag out” theory should provide the
operator with immunity from disregarding the second requirement (de-energization) of this
regulation.1

     Whether or not one agrees with the Secretary’s argument regarding the definition of

“blocked against motion,” she has nonetheless made clear throughout this litigation that
compliance with both prongs of the standard is necessary. As I noted in my previous dissent in
this case, “[t]he Secretary’s interpretation of the standard . . . [requires] that belts on which
miners are working be deenergized and locked out, at least where, as here, the belts are not
otherwise blocked against motion . . . .” Id. at 836, quoting PDR at 13 (emphasis in original); see
also Tr. 25 (“There are two requirements in the standard: That the power be off and that the
machinery be blocked against motion.”) (Argument of Secretary’s Counsel); Sec’y Post-Hr’g Br.
at 10, 12 (“Since the Contestant failed to lock out and tag out the 5-A and 5-B belts and did not
de-energize the 5-B belt, it violated section 75.1725(c) . . . . [T]he standard requires that two acts
must be performed . . . the power must be turned off and the machinery must be blocked against
motion.”) (emphases added); PDR at 12-13 (“The judge erred in failing to address and accept the
Secretary’s argument that . . . the 5B belt was required to be deenergized and blocked against
motion. . . . The Secretary’s interpretation of the standard . . . requir[es] that belts on which
miners are working be deenergized and locked out, at least where, as here, the belts are not
otherwise blocked against motion . . . .) (emphasis in original); Sec’y Mot. at 3 (“The Secretary’s
litigation position in the case has always been that the operator violated the standard both
because the 5-B belt was energized and because the 5-A and the 5-B belts were not locked and
tagged out or otherwise blocked against motion.”) (emphasis in original). Thus, the Secretary
has consistently maintained that even if the operator fulfills one of the requirements of the
standard, it will be in violation if it fails to obey the second as well. See L & T Fabrication &
Constr., Inc., 22 FMSHRC 509, 514 (Apr. 2000) (Commission noted that “the two prongs of the
test set forth in the 1996 EAJA amendments are conjunctive (i.e., joined by the word ‘and’).
Thus, for an applicant to prevail, both prongs of the test must be met.”).

   1
  It is undisputed that the 5-B belt was unexpectedly energized. See Island Creek, 22

FMSHRC at 824.

                                     23 FMSHRC 141

    Although my colleagues have documented at length their firm disagreement — indeed,

their undisguised pique — with the Secretary’s “lock and tag out theory,” they have failed to
explain why their dispute with the Secretary over one requirement in the standard should grant the
operator license to ignore the other — the explicit additional mandate that the belt be
de-energized. This is the legal argument that the Secretary has steadfastly asserted and that my
colleagues have clearly overlooked. See Mancuso v. Herbert, 166 F.3d 97, 99 (2d Cir. 1999)
(petition for rehearing appropriate where significant facts or legal arguments have been
overlooked).

    For these reasons, and for the reasons stated in my initial opinion in this matter, I would

grant the Secretary’s motion.

                                          Mary Lu Jordan, Chairman


   2
       The Secretary’s position that both requirements of the standard must be met to avoid

liability is in accord with Commission precedent, as well as common sense. For example, in
Ozark-Mahoning Co., 12 FMSHRC 376 (Mar. 1990), the Commission reviewed a decision
involving a violation of 30 C.F.R. § 57.12016. The first sentence of that standard required that
equipment be deenergized before mechanical work is performed. 12 FMSHRC at 379. The
second sentence required the operator to take appropriate measures to prevent reenergization. Id.
The Commission upheld the judge’s ruling that the operator’s failure to comply with the first
sentence was sufficient to sustain a finding of violation, concluding that the two sentences set
forth conjunctive requirements. Id.

                                     23 FMSHRC 142

Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Karl T. Skrypak, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241

                           23 FMSHRC 143