Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc.

Plain-English summary

An ALJ granted summary decision in a discrimination case and assessed civil penalties against Grimes Rock. The company asked the Commission to stay payment while the case was on appeal or allow it to place the money in an interest-bearing escrow account. After filing that request, Grimes paid the penalties in full and did not withdraw its motion. The Commission therefore denied the stay request as moot. It also noted that Grimes had not addressed the four factors required for extraordinary stay relief.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: The motion to stay payment of the penalties was denied as moot.
• Key point: Full payment of assessed penalties eliminates the need for a stay of payment.

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 Nos. WEST 2022-0334

:
WEST 2023-0015

GRIMES ROCK, INC. : WEST
2023-0016

BEFORE: Jordan,
Chair; Baker and Marvit, Commissioners

ORDER

BY: THE
COMMISSION

These
proceedings arise under section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act” or “Act”).[1] On
August 22, 2024, the Commission received from Grimes Rock, Incorporated (“Grimes”)
a motion to stay enforcement of the Administrative Law Judge’s July 24, 2024
assessment of civil penalties after granting the Secretary of Labor’s motion
for summary decision. In the alternative, Grimes requests that the Commission
permit it to deposit the amount of the civil penalty assessment in an escrow
account while the case is on appeal.

The
Secretary does not oppose a stay of the order to pay the penalty or the request
to deposit the penalty amount in an interest-bearing escrow account, but only
through the pendency of the proceeding before the Judge in the Saldivar
temporary reinstatement case, Docket No. WEST 2021-0178-DM.[2] Sec’y
Resp. at 2. However, the Secretary also provides documentation demonstrating
that since filing its motion for stay, on August 29, 2024, Grimes paid the subject
penalties in full. To date, the Commission has not received a request from
Grimes to withdraw this motion.

In
light of Grimes’ recent payment of the penalties in the instant matter, we deny
the operator’s motion to stay payment of said penalties as moot. See
Riverton Investment Corp., 31 FMSHRC 1067, 1067–68, (Oct. 2009) (denying
motion to reopen as moot given operator’s payment of penalty assessment).

/s/
Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe
Z. Marvit

Moshe Z.
Marvit, Commissioner

Distribution List:

Kenneth H. Moss, Esq.

Pachowicz & Goldenring PLC

6050 Seahawk Street

Ventura, CA 93003

[email protected]

Tina Amoke, 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]

Ryan M. Kooi, Esq.

Office of the Solicitor, MSHA

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Alexandra J. Gilewicz, Esq.

Office of the Solicitor, MSHA

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202

[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]

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]

Administrative Law Judge Richard W. Manning

Office of the Chief Administrative Judge

Federal Mine Safety and Health Review Commission

721 19th Street, Suite 443

Denver, CO 80202-2536

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Judge

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

[1] 30 U.S.C. § 815(c)(2) provides in pertinent part:

Any
miner . . . who believes that he has been discharged, interfered with, or
otherwise discriminated against by any person in violation of this subsection
may, within 60 days after such violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems appropriate. Such investigation
shall commence within 15 days of the Secretary’s receipt of the complaint, and
if the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.

[2] The Commission has held that a party seeking a stay
must make an adequate showing with respect to the four factors set forth in Virginia
Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921,
925 (D.C. Cir. 1958): (1) a likelihood that the moving party will prevail on
the merits of its appeal; (2) irreparable harm to it if the stay is not
granted; (3) no adverse effect on other interested parties; and (4) a showing
that the stay is in the public interest. Secretary on behalf of Price and
Vacha v. Jim Walter Res., Inc., 9 FMSHRC 1312 (Aug. 1987); Sec’y ex rel.
Saldivar v. Grimes Rock, Inc., 44 FMSHRC 725 (Aug. 2022); UMWA on behalf
of Franks & Hoy v. Emerald Coal Res., LP, 35
FMSHRC 2373, 2374 (Aug. 2013). The Commission made clear that a stay
constitutes “extraordinary relief.” Id. We note that Grimes did not
address the required factors.