Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc. (Commission decision, July 23, 2024)

Plain-English summary

The Commission had remanded Saldivar's discrimination case to the ALJ for additional findings. Before the ALJ ruled on remand, Grimes Rock appealed to the Ninth Circuit. The court dismissed the appeal because a Commission remand order is not a final agency decision and later returned jurisdiction. The Commission explained that the ALJ had not yet issued a post-remand decision, so the ALJ's jurisdiction never terminated. It directed that the remand proceedings could continue.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 816(a)(1) and 823(d)(1)
• Outcome: The ALJ retained jurisdiction and was authorized to continue the remand.
• Key point: A premature court appeal from a nonfinal remand does not end the ALJ's continuing jurisdiction.

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), :

on behalf of ALVARO SALDIVAR :

:

v.
: Docket No. WEST 2021-0178-DM

:

GRIMES ROCK, INC. :

BEFORE: Jordan, Chair; Althen, Rajkovich, Baker, and Marvit, Commissioners

NOTICE

On November 28, 2023, the
Commission issued a decision remanding this case to the Administrative Law Judge for further findings consistent with its decision. Before the Judge could issue his ruling, Grimes Rock, Inc. (“Grimes Rock”) appealed the Commission’s decision to the Ninth Circuit.[1] On May 23, 2024, the Court dismissed Grimes Rock’s appeal for lack of jurisdiction on the basis that a remand order to a judge is not a final agency decision. Grimes Rock, Inc. v. FMSHRC, No. 23-4418 (9th Cir. dismissed May 23, 2024), citing Alaska v. EEOC, 564 F.3d 1062, 1065 n.1 (9th Cir. 2009). The Court’s mandate returning jurisdiction to the Commission was issued on July 15, 2024.

Commission Rule 69(b) states
that: “Except to the extent otherwise provided herein, the jurisdiction of the Judge terminates when his decision has been issued.” 29 C.F.R. § 2700.69(b); Vermont Unfading Green Slate Co., 23 FMSHRC 787 (Aug. 2001) (“The judge’s jurisdiction in this matter terminated when his decision was issued. . .”); Peabody Coal Co., 2 FMSHRC 1035, 1037 (May 1980) (stating that in as much as the Judge’s decision “constitutes his final disposition of the proceedings” within section 113(d)(1) of the Mine Act, 30 U.S.C. § 823(d)(1), the Judge’s jurisdiction terminates on the date of issuance). In the instant matter, the Judge has yet to issue a decision pursuant to the Commission’s November 28 remand order. Therefore, the Judge’s jurisdiction here never terminated.

Accordingly,
the Judge retains jurisdiction over this case and may proceed on remand as originally instructed and consistent with the Commission’s November 28, 2023 decision.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ William I.
Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich,
Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker,
Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Distribution List:

Peter Goldenring, Esq.

Pachowicz & Goldenring PLC

6050 Seahawk Street

Ventura, CA 93003

[email protected]

Mark R. Pachowicz, Esq.

Pachowicz & Goldenring PLC

6050 Seahawk Street

Ventura, CA 93003

[email protected]

Alvaro Saldivar

1241 Lookout Drive

Oxnard, CA 93035

[email protected]

Ryan M. Kooi, Esq.

U.S. Department of Labor

Office of the Regional Solicitor,

1835 Market Street, Mailstop SOL/22

Philadelphia, PA 19103-2968

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Karla Malagon, Esq.

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa
Street, Suite 370

Los Angeles, CA 90071

[email protected]

Jessica M. Flores,
Esq.

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

[email protected]

Bruce L. Brown, Esq.

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health
Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge Glynn
F. Voisin

Federal Mine Safety & Health
Review Commission

Office of the Chief Administrative
Law Judge

1331 Pennsylvania Avenue, NW, Suite
520N

Washington, DC 20004-1710

[email protected]

[1] “Any petition for federal court review of the Decision pursuant to section 106(a)(1) of the Mine Act, 30 U.S.C. § 816(a)(1), must generally await resolution of the remand to the judge, a further petition for discretionary review to the Commission, and disposition by the Commission of the petition.” North Fork Coal Corp., 33 FMSHRC 589, 596 n.7 (Mar. 2011).