Chester M. Jenkins v. Secretary of Labor (MSHA) (ALJ decision, September 22, 1981)

Plain-English summary

Miner Chester M. Jenkins tried to contest an MSHA citation issued to his employer, Day Mines, Inc., at the Republic Unit Mine. Judge Gary Melick held that section 105(d) of the Mine Act lets an operator contest the issuance of a citation but does not give a miner that same right. He granted the Secretary's motion and dismissed Jenkins's contest without deciding whether the citation was valid. The judge noted that Jenkins could participate if the operator later contested a proposed penalty.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(d), rights to contest citations and orders.
• Outcome: Miner's contest of Citation No. 354435 dismissed; citation merits not decided.
• Key point: A miner may contest certain orders and abatement periods, but cannot independently contest issuance of a section 104(a) citation under section 105(d).

Full text (FMSHRC public release)

CCASE:
CHESTER JENKINS v. SOL (MSHA)
DDATE:
19810922
TTEXT:
~2175
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

CHESTER M. JENKINS,
Contest of Citation
CONTESTANT
v. Docket No. WEST 81-348-RM

SECRETARY OF LABOR,
Citation No. 354435
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Republic Unit Mine
RESPONDENT

DECISION AND ORDER OF DISMISSAL

On July 15, 1981, Mr. Chester M. Jenkins, a miner employed at Day Mines, Inc., filed a notice of contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., the "Act,"(FOOTNOTE.1) seeking to contest the issuance to Day Mines, Inc., the mine operator, of Citation No. 354435, a citation issued under section 104(a) of the Act. The operator itself has not filed a notice of contest within the 30 days required by section 105(d) of the Act. On September 1, 1981, the Secretary filed a motion to dismiss the miner's contest on the grounds that the miner is "barred from challenging" the subject citation under section 105(d).
~2176
Under section 105(d), an operator may challenge the issuance or modification of citations and certain orders, the notification of a proposed assessment of penalty, and the reasonableness of the time set for abatement. Under the plain language of that section, the miner and representative of miners are given authority to challenge only the issuance, modification or termination of certain orders and the reasonableness of time set for abatement. Where the language of a statute is plain and admits of no more than one meaning, there is no need for interpretation and no need to resort to the rules of construction. Caminetti v. U.S., 242 U.S. 470 at 485, 61 L.Ed 442, 37 S. Ct. 192 (1916). Accordingly, I find that there is no authority under the provisions of section 105(d) of the Act for a miner to contest the issuance of a section 104(a) citation.(FOOTNOTE.2)

The Secretary's motion to dismiss is therefore GRANTED and it is ORDERED that the captioned proceeding be DISMISSED.(FOOTNOTE.3)

Gary Melick
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
Section 105(d) of the Act provides:

"If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this section, or the reasonableness of the length of abatement time fixed in a citation or modification thereof issued under section 104, or any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order issued under section 104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, * * * the Commission shall afford an opportunity for a hearing * * *." (Emphasis added.)

~FOOTNOTE_TWO
See United Mine Workers of America v. Secretary of Labor, CENT 81-223-R (August 28, 1981); Council of the Southern Mountains v. Donovan, No. 99-2982 (D.D.C. 1981), 2 BNA MSHC 1329, 1322, n. 8.

~FOOTNOTE_THREE
If the operator should later contest the proposed assessment, the miner in question may nevertheless participate as a party to the civil penalty proceeding. 29 C.F.R. 2700.4.