Secretary of Labor v. Rain for Rent (Commission decision, May 2, 2019)

Plain-English summary

The Commission had affirmed citations against Rain for Rent and later denied reconsideration. Rain for Rent appealed, arguing that the original administrative law judge had not been constitutionally appointed under the Appointments Clause. The Secretary joined the company in asking the D.C. Circuit to remand for a new hearing under Lucia v. SEC. The court set aside the Commission's earlier decision and reconsideration order and returned the case for a new hearing. The Commission remanded the matter for reassignment to a different judge, who later issued the final decision in west-2016-730-alj.

Decision snapshot

• Cited authority: U.S. Const. art. II, § 2, cl. 2
• Outcome: The case was remanded for reassignment to a different administrative law judge and a new hearing.
• Subsequent action: The post-remand decision in west-2016-730-alj affirmed two citations and assessed $228.
• Key point: After the court set aside the earlier rulings under Lucia, the Commission ordered a fresh hearing before a different judge.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY
OF LABOR,                            :

MINE
SAFETY AND HEALTH                  :

ADMINISTRATION
(MSHA)                     :

:

v.                                              
:         Docket No. WEST 2016-730-M

:

RAIN
FOR RENT                                          :

BEFORE:
Rajkovich, Chairman; Jordan,
Young, Althen, and Traynor, Commissioners

ORDER

BY
THE COMMISSION:

On
July 31, 2018, the Commission issued a decision in the captioned civil penalty proceeding in which it affirmed the decision of the Administrative Law Judge and the citations at issue. 40 FMSHRC 976 (Jul. 2018). Rain For Rent thereafter filed a petition for reconsideration with the Commission, stating that the matter should be reconsidered because the Judge had not been properly appointed to his position in accordance with the Appointments Clause of the U.S. Constitution, U.S. Const. Art. II § 2, cl. 2. [1] On August 30, 2018, the Commission issued an order denying reconsideration. Rain For Rent then appealed both of the Commission’s decisions to the United States Court of Appeals for the D.C. Circuit.

Before the D.C. Circuit, Rain For Rent
represented that it intended to argue to the Court that the Commission Judge had not been appointed in accordance with the requirements of the U.S. Constitution as explained in Lucia v. SEC , 138 S. Ct. 2044 (2018). The Secretary joined Rain For Rent in filing a joint motion to remand the case to the Commission for a new hearing.

On March 22, 2019, the D.C. Circuit granted
the parties’ motion for remand, setting aside the Commission’s July 31 and August 30 decision and order and “remanded [the case] to the [Commission] for a new hearing, in accordance with Lucia v. SEC , 138 S. Ct. 2044 (2018).” Western Oilfields Supply Co., d/b/a Rain For Rent v. FMSHRC , No. 18-1269, slip op. at 1 (D.C. Cir. Mar. 22, 2019).

Accordingly, the Commission hereby
remands this matter to the Acting Chief Administrative Law Judge so that it may be reassigned to a different Judge for a hearing consistent with the D.C. Circuit’s instructions.

/s/ Marco M. Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

[1]
On July
31, 2018, the same day that the Commission issued its decision on this matter, the United States Court of Appeals for the Sixth Circuit vacated and remanded a separate matter for a new hearing before a constitutionally appointed Administrative Law Judge. Jones Bros., Inc., v. Sec’y of Labor , 898 F.3d 669 (6th Cir. 2018).