Florida Canyon Mining, Incorporated

Plain-English summary

Florida Canyon Mining contested MSHA letters terminating an agreement that had extended the time to address respirable dust conditions. The parties asked to stay the proceeding while they discussed extensions and a possible settlement. Judge David F. Barbour denied the stay because Judge Paul Merlin had raised a threshold question about whether the Commission had jurisdiction over the contest, and that question had to be addressed before the case could be paused. The parties were ordered to explain within 30 days why the case should not be dismissed for lack of subject matter jurisdiction.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(d)
• Outcome: The joint motion to stay was denied, and the parties were ordered to brief possible dismissal for lack of subject matter jurisdiction.
• Key point: A judge should resolve a serious jurisdictional question before staying a proceeding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

                                     February 11, 2000

FLORIDA CANYON MINING, : CONTEST PROCEEDING
INCORPORATED, :
Contestant : Docket No. WEST 2000-24-M
: Order dated August 10, 1999
v. :
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Florida Canyon Mine
ADMINISTRATION (MSHA), : Mine ID No. 26-01947
Respondent :

                       ORDER DENYING MOTION TO STAY
                       ORDER TO SUBMIT INFORMATION

    On October 12, 1999, the Commission received the operator’s notice of contest of

MSHA’s notices to terminate an Agreement to Abate Violative Health Conditions which was
given the above-captioned docket number. The operator advised that it entered into an
agreement with MSHA on October 17, 1997, which provided that the time for abatement of
certain citations would be extended so that the operator could address the problem of exposure of
miners to dust at the mine. On August 10, 1999, MSHA sent a letter to the operator stating that
MSHA was terminating the agreement within 30 days. The operator asked for and was granted
additional time until October 12, 1999, to comply with MSHA regulations in a letter dated
September 8, 1999, from MSHA. On September 10, 1999, MSHA sent another letter confirming
that the operator must be in full compliance by October 10. The operator is seeking to contest
the August 10 and September 8 letters.

    On October 18, Chief Administrative Law Judge Paul Merlin issued an order directing

the Solicitor to file a response to the operator’s notice of contest.

    On November 17, 1999, the Solicitor filed his response stating that the abatement date

was extended until November 29, 1999, and the parties were engaged in discussions in order to
avoid litigating this matter. Because of these actions, the Solicitor asserted that the contest of the
termination of the extension of abatement agreement was not ripe.

   On December 16, 1999, Judge Merlin issued an order directing the parties to set forth in

writing why this case should not be dismissed for lack of subject matter jurisdiction. Judge Merlin
stated in his order that the parties should addressed what appeared to him the more fundamental
question of whether the Commission has jurisdiction in this case. Judge Merlin

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pointed out that it is well established the Commission as an administrative agency has only the
jurisdiction which Congress gives it, Lyng v. Payne, 476 U.S. 926, 937 (1986); Killip v. Office
of Personnel Management, 991 F.2d 1564, 1569 (Fed Cir. 1993); Samuel B. and Nancy Sanders,
18 FMSHRC 377, 378 (March 1996), and that the Commission has long recognized that it cannot
exceed the limits of its authority as enacted by Congress. Kaiser Coal Corp., 10 FMSHRC 1165,
1169, (September 1988). Judge Merlin further observed that section 105(d) of the Act, 30 U.S.C.
§ 815(d), sets forth how and under what circumstances Commission review may be obtained of
actions taken by MSHA, and that he had repeatedly held the jurisdictional restrictions on the
Commission must be observed. Samuel B. and Nancy Sanders, supra; Jim Walter Resources, 18
FMSHRC 380, 381 (March 1996); D.H. Blattner & Sons, 17 FMSHRC 1073, 1074 (June 1995);
Consolidation Coal Co., 16 FMSHRC 1403, 1404 (June 1994); Wallace Brothers, 14 FMSHRC
586, 588 (May 1992). Finally, Judge Merlin stated that it did not appear the termination of an
abatement agreement is an action covered by the statute.

    On January 11, 2000, the parties filed a joint motion to stay this proceeding. The parties

advise the primary reason for this request is the repeated abatement extensions of related
citations and agreements that present a time delay in any basis for contest in these matters. The
parties state that they plan to meet within the next sixty days to explore resolution of pertinent
issues concerning respirable dust standards at the mine and this may cause the parties to settle
these matters without further litigation.

    The parties’ motion is not well taken. The question of subject matter jurisdiction has

been raised by Judge Merlin. Once this issue has raised by either the judge or the parties, it must
be adjudicated. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Moreover, rule 12(h)(3)
of the Federal Rules of Civil Procedure requires a judge to dismiss an action “whenever it
appears by suggestion of the parties or otherwise that the court lacks subject matter jurisdiction.”
The parties are now requesting that I stay a proceeding regardless of whether subject matter
jurisdiction exists. However, implicit in the power to stay a case is that the judge has jurisdiction
over the matter. Since it is unclear whether jurisdiction is present, the stay request cannot be
granted. Rather, the parties must set forth their position with respect this issue.

   In light of the foregoing, it is ORDERED that the motion to stay is DENIED.

    It is further ORDERED that within 30 days of the date of this order the parties set forth

in writing why this case should not be dismissed for lack of subject matter jurisdiction.

                                          David F. Barbour
                                          Chief Administrative Law Judge



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Distribution: (Certified Mail)

Laurence S. Kirsch, Esq., Geraldine Edens, Cadwalader, Wickersham & Taft, 1333 New
Hampshire Avenue, N.W., Washington, DC 20036

James B. Crawford, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

Thomas A. Mascolino, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Room 420, Arlington, VA 22203

/gl

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