J. Davidson & Sons Construction Company, Inc.

Plain-English summary

J. Davidson & Sons Construction Company sought discretionary review of an ALJ order denying its request for a show cause order about the Secretary's late answer to Davidson's notice of contest. The Commission held that the ALJ order did not finally dispose of the proceedings, so jurisdiction remained with the judge and the petition was premature. The Commission also treated the petition as seeking interlocutory review, which was unavailable because the judge had not certified the ruling and had not denied a certification motion. The petition was denied.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.69(b); 29 C.F.R. § 2700.76(a)(1); 30 U.S.C. § 823(d)(1)
• Outcome: The petition for discretionary review was denied as premature.
• Key point: Commission review was unavailable for an interlocutory ALJ order that had not been certified for immediate review.

Full text (FMSHRC public release)

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

                                         May 29, 2001

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 2001-162-M
:
J. DAVIDSON & SONS :
CONSTRUCTION COMPANY, INC. :

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

                                            ORDER

BY THE COMMISSION:

    On April 19, 2001, J. Davidson & Sons Construction Company (“Davidson”) filed a

document entitled “Petition for Discretionary Review” with the Commission, challenging an Order
Denying a Motion for a Show Cause Order issued by Administrative Law Judge Manning on
March 20, 2001. Davidson had moved for an order compelling the Secretary to show why it failed
to timely answer Davidson’s notice of contest. Although Davidson argues that the judge issued a
final order, D. Reply Br. at 2, the order did not “finally dispose . . . of the proceedings before the
judge.” Council of S. Mountains v. Martin County Coal Corp., 2 FMSHRC 3216, 3217 (Nov.
1980). Jurisdiction therefore remains with the judge and Davidson’s petition for discretionary
review is premature. 30 U.S.C.§ 823(d)(1); Commission Procedural Rule 69(b), 29 C.F.R.
§ 2700.69(b); Meek v. Essroc Corp., 14 FMSHRC 81 (Jan. 1992); Campbell v. Anaconda Co., 3
FMSHRC 2763 (Dec. 1981); Wiggins v. E. Associated Coal Corp., 5 FMSHRC 1668 (Oct. 1983).

    Davidson’s petition in fact seeks review of an interlocutory order. Commission Procedural

Rule 76(a)(1), 29 C.F.R. § 2700.76(a)(1), provides that interlocutory review “cannot be granted”
unless (i) the judge has certified that his interlocutory ruling involves a controlling question of law
and immediate review will materially advance the final disposition of the proceeding; or (ii) the
judge denies the party’s motion for certification and the petition for interlocutory review is filed
with the Commission within 30 days of the judge’s denial. Here, the judge did not certify his
interlocutory ruling to the Commission, nor did he deny any motion by Davidson for certification.
Accordingly, we deny it.

                                       23 FMSHRC 502

Page 2

For the foregoing reasons, Davidson’s petition for discretionary review is denied.

                                 Mary Lu Jordan, Chairman




                                 James C. Riley, Commissioner




                                 Theodore F. Verheggen, Commissioner




                                 Robert H. Beatty, Commissioner




                              23 FMSHRC 503

Page 3

Distribution

George W. Goodman, Esq.
Cummins, Goodman, Fish & Platt, P.C.
P.O. Box 17
McMinnville, OR 87128-0017

William W. Kates. Esq.
Office of the Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, WA 98101-3212

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

                                   23 FMSHRC 504